BREATH DEMAND

By the time a client retains a lawyer, they have often formulated an opinion in their mind as to whether their case is defendable or not. Many feel that they have been caught red-handed and might as well just plead guilty. While there is nothing inherently wrong with entering a guilty plea, it would be foolish to do so without fully understanding your rights and the obstacles the Crown faces. Upon review of the disclosure and review of the law, what seems like an air-tight case may in fact have holes, both factual and legal. In this case, the accused was charged with failing to remain at the scene of an accident, refusing to provide a breath sample and impaired driving. It was alleged that the accused was in an accident in a parking lot. After briefly checking for damage, he drove off, and went straight home. After a brief investigation, the police arrived at the accuseds house and demanded he attend to provide a breath sample. The client refused. In this case, there were no Charter issues to vet. Thus, it was a strictly fact driven case. Was the identity of the accused sufficiently proven? Did the client have an obligation to provide a breath sample? Did the police officer lack the grounds upon which to make the demand? Moreover, could the Crown even prove that the accused failed to stop at the scene of the accident as required by law? Was the client even impaired? All of these issues have legal nuances which are not apparent to the layperson. As with most cases, the only tool at our disposal was cross-examination, which needed to be tailored to fit into the jurisprudential framework. The client initially approached with a desire to plead guilty and do his time; instead, he was acquitted of all charges, was spared from having a criminal record and was able to keep his drivers licence.