Impaired operation and operation “over 80”
After golfing all day, our client was sunburned and possibly suffering from heatstroke. While driving home, he lost consciousness and his vehicle abruptly veered into the oncoming lane, causing a head-on collision with multiple vehicles.
Police officers attended the scene and two officers spoke with our client. The first officer evaluated our client and concluded that he was not intoxicated. The second officer spoke with our client and demanded that he perform a roadside breath test. Our client failed the roadside test, was arrested for impaired driving offences, and compelled to provide further breath samples at the police station. Our client was ultimately charged with impaired driving and driving “over 80.”
During the investigation, neither of the officers who spoke to our client wrote in their duty book notes that our client had said anything about consuming alcohol. However, after one of the officers spoke to the breath technician at the police station, both officers added notes saying that our client had admitted to consuming alcohol before he was required to perform the roadside breath test. At trial, the officer who administered the roadside breath test testified that this alleged admission was the basis he relied upon to compel our client to perform the test.
The trial judge found that officers’ failure to write notes about their conversation with out client at the roadside was a serious deviation from the requirements of policing and found that the omissions and late entries raised the possibility of collusion. On that basis, the trial judge could not find that our client ever admitted to consuming alcohol. Consequently, the breath tests constituted unlawful seizures and the arrest of our client was illegal.
RESULT: The judge excluded all breath test results and our client was acquitted of all charges.