Impaired operation and operation while “over 80”
Our client was driving to a friend’s house in an unfamiliar neighborhood after midnight. She made a wide right turn on a red light without stopping, which caught the attention of a male police officer driving an unmarked cruiser. The male police officer eventually stopped our client’s vehicle in order to investigate whether she was impaired or on her cell phone. (In a typed report written three hours later, the officer claimed that our client had been argumentative, that she had slurred speech, that she smelled like alcohol, and that she eventually admitted to having “a sip” of alcohol before driving, all of which led him to believe she had alcohol in her body. However, in his handwritten duty book notes from the roadside, the officer only wrote that she had slurred speech and that had denied drinking any alcohol.) Our client failed a roadside screening test and was arrested. The officer informed her of her rights to counsel nine minutes later. A female officer arrived on scene to search our client. The male officer claimed that the search was delayed because our client was argumentative, but the female officer who conducted the search claimed that it was uneventful. Eventually, our client was brought to the police station, where she provided breath samples that registered twice the legal limit. Our client was charged with operating a motor vehicle while impaired and with a blood alcohol content of over eighty milligrams of alcohol in one-hundred millilitres of her blood.
Defence counsel brought an application to exclude the breath readings under the Canadian Charter of Rights and Freedoms on the basis that the male officer was an unreliable witness because his duty book notes did not include the most important details that he claimed to rely on and because his evidence conflicted with the female officer. The trial judge accepted this argument, found that the officer was not a reliable witness, found that the officer had breached our client’s right against unreasonable search and seizure and her right to be informed about her right to contact a lawyer immediately, and excluded the breath readings. The trial judge also found that the wide right turn on a red light did not establish that our client was impaired beyond a reasonable doubt.
RESULT: Our client was found not guilty of both charges.