Failure to provide a breath sample

In the early hours, our client borrowed a friend's car in order to drive a girl home after a party. For unknown reasons, the girl called the police from a gas station and claimed that our client was holding her against her will. (Our client was never charged with any wrongdoing in this regard.) The local police force stopped our client's vehicle and started an impaired driving investigation. According to the arresting officer, our client failed an approved roadside screening device, but at trial the officer could not recall which device had been used. Our client was arrested for driving while "over 80" on the basis that he failed the test and he was brought back to the police station for further testing. By the time that our client was brought to the breath room, he had become sullen and refused to say anything in response to the officers. The breath technician at the station demanded that our client provide another breath sample, but this officer went on to say that our client could choose not to provide a sample.


The trial judge excluded all the evidence from the trial because the arresting officer could not prove that he actually obtained results from an approved roadside screening device, which meant that his conduct violated our client's rights under the Canadian Charter of Rights and Freedoms. Furthermore, even if the evidence was admissible, the trial judge found that the breath technician gave our client the option of not providing a sample, which is not a valid demand.


RESULT: Our client was found not guilty of his charge.