The police sometimes arrests a driver very shortly after the driver had his or her last drink. Such cases are often heard, for example, in Brampton court and in Scarborough (at 1911 Eglinton Avenue East) court because local municipal police (Peel regional police and 42 division Toronto police) closely monitors drinking establishments and actively investigates drivers who depart from it. The defence’s argument works as following: alcohol consumed shortly before the stop is not yet in the accused’s blood at the time of driving, but it would be in blood at the time of breath tests later at the station. It is only a crime to drive with over 80 in your blood, not in your stomach. It makes breath tests results open for challenge.
This defence, also known as Carter defence, is available when the time between the traffic stop and the first intoxilyzer test is more than two hours.
In a vast majority of Over 80 cases the Crown will attempt to rely on the Certificate of Qualified Technician to prove your blood alcohol content. The Crown would then have to prove beyond a reasonable doubt that you were properly served with the certificate. Should they fail to do so, it may present a complete defence.
This is a classic situation: different police officers describe your indicia of impairment differently. One officer says you stumbled, another says you were swaying. The officers are expected to be observant and to take accurate notes on these important points. Contradictions may leave the judge in doubt about whether you did look impaired, as stated by a criminal lawyer in Toronto. See how it worked successfully in one of my cases.
This defence is in play whenever the police did not find you behind the wheel. Typically it happens in post-accident situations. The Crown will need to prove that you were the driver. A complex set of rules applies to the admissions that you may have made. A lot of them can be excluded from evidence. Ask me how it worked in several of my cases.
This defence is based on a premise that you are not supposed to be left in a state of indefinite uncertainty about your fate in the face of outstanding charges. Section 11(b) of our Charter of Rights guarantees it. See how it worked in a few of my cases, saving my clients from convictions in most desperate cases with high readings, significant visible impairment and accidents.
An approved screening device demand must be given to you as soon as reasonable. So if the officer does not have the device is his or her car and radioes for it to be brought to the scene, meanwhile leaving you wonder why you are not allowed to leave, the Crown’s case may be in mortal danger
You are entitled to speak to a lawyer at your earliest opportunity. If this opportunity happens to be right on the scene of the stop, for example if the police is waiting for their sergeant to arrive, and you are not connected to a lawyer, it may be a complete defence against an Over 80 charge
Sometimes the officer who administered the roadside screening device (usually it’s a Drager Alcotest 6810) cannot explain to the judge how this procedure should properly be done. It may allow a Charter challenge with a view to exclude the samples.
If the judge finds that you were arrested without sufficient reasonable and probabble grounds (RPG), your breath readings may be excluded from the evidence. RPG for arrest for impaired ought to contain suffici=ent indicia of impairment. RPG for arrest for an Over 80 should flow from a properly administered approved screening device.
Your rights to counsel are very important in any Over 80 case. If you were not connected to counsel of your choice and the police did not take reasonable steps to accommodate you, te breath readings may be excluded.
Samples of breath must be taken pursuant to a proper breath demand. If the officer forgot to read the demand to you or read the wrong demand, the court may disregard the breath samples
In many Over 80 cases the samples must be taken as sson as practicable in order for the police to use them. Delays in taking the samples occur frquently and they may be fatal to the Crown’s case against you.
In many cases the crown fully relies on their expert toxicologist. However it is not uncommon that the communication between the Crown (or the police) and their expert is ineffective. A knowledgeable lawyer should be able to use it to destroy the Crown’s case.
In some cases there is evidence that the intoxilyzer machine used for taking your breath samples has not been properly maintained or properly operated. These cases are highly technical and often involve one or two experts. If the judge agrees that the machine cannot be trusted, the samples will be excluded and the case will be dismissed.
416-512-2345
