May 23, 2015


Analysis

Legal cartwheels toss breathalyzer tests

Regularly, drivers are pulled over, asked to blow into an approved screening device (ASD) see if they've been drinking before driving. If they fail that test, they're taken to a police detachment for a full breathalyzer, and if they fail that, they are regularly charged with impaired driving.

And, just as regularly, it seems, drivers who are charged make their way to court holding the Canadian Charter of Rights and Freedoms to claim their rights were violated by something as simple as failing the breathalyzer.

There are a countless number of Charter violations that come up in drunk driving trials virtually daily: did police officers have enough grounds to believe the drivers were impaired before asking them to take a breathalyzer test? Did the police get the accused to a breathalyzer fast enough, or unlawfully detain a driver because a test wasn't immediately available? Did the police calibrate the ASD drivers were asked to blow into before being taken to a police detachment for the full breathalyzer test?

Were drivers given their full rights to counsel? Did their cases come to court fast enough, or was their right to a fair trial affected by the delay? Was every single word in a demand to take blood for alcohol testing read to the driver involved?

The list goes on and on.

Police officers are grilled on their notes and their memories, on their impressions and their record-keeping. And all for a charge that, if everything is done properly, is pretty open and shut.

Interestingly, in three recent cases -- the Queen versus Mirecki in Manitoba, the Queen versus Stewart in Alberta and the Queen versus Wood in British Columbia -- the accused had breath alcohol levels high enough to be considered impaired. In two of the three cases, the driver's Charter rights were found to have been violated.

Certainly, the Canadian Charter of Rights is not a technicality.

But there are circumstances now where convictions hinge on whether a police officer took five minutes or three minutes to reach the detachment -- taken the wrong road -- being a violation of a driver's rights.

There are other cases where defence lawyers request every scrap of paperwork connected to an ASD, right back to the date of its arrival from the manufacturer, in an effort to show any historic incidence of problems or failure in maintenance.

It's understandable why drivers would use every means possible to avoid a conviction for drunk driving. The penalties are stiff -- particularly losing your driver's licence, which for many people means a significant change to their way of life, and sometimes, to their very means of employment.

But the whole process is remarkably straightforward: if you're pulled over and suspected to have been drinking, you blow into a machine that measures your level of impairment. Fail the test, you're charged.

Instead, it's regular legal gymnastics and, sometimes, legal gymnastics of the most convoluted kind.

Common sense would suggest there has to be a better way.

 

-- The Canadian Press

Republished from the Winnipeg Free Press print edition March 6, 2014 A12

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