Client arrested in a parking lot just as he exited a local bar. After failing a roadside breath test was taken to the station where he provided two breath samples which were twice the legal limit. Charged accordingly with over 80.

Despite Crown’s initial position which sought a period of jail, case was eventually resolved following a judicial pretrial by way of a plea to the Highway Traffic Act offence of careless driving. Insofar as the entire event had occurred upon private property an issue arose relating to the power of the arresting officer to make a breath demand in circumstances where the motorist was not on a “highway”. There were also an issue relating to a possible arbitrary detention of the motorist based on his previous criminal record which the officer likely discovered by running a license plate check sometime earlier in the day. Lastly, in my discussions with the Crown through previous correspondence and during the meeting in chambers with the Judge, I emphasized that I would seek to exclude the breath readings due to the improper administration of the roadside breath test which took place without any inquiry as to the time of the accused’s last drink. The failure to determine this, which is mandated in officer training, suggested the possibility of a “false positive” test due to unabsorbed residual mouth alcohol thereby bringing into question the officer’s reasonable and probable grounds to arrest.

By Michael Engel| September 17th, 2017|