ILLEGAL BREATHALYZER DEMAND

The public is often outraged when they hear about a lawyer using a legal loophole to obtain an acquittal. This view of the criminal justice process is often the result of a fundamental lack of understanding of why the Crowns power is curtailed by strict technical requirements. Ultimately, the Criminal Code protects society by ensuring that the state does not over-extend its reach. In this case, the accused was charged with impaired driving. The officer, however, formed his grounds to arrest the accused without using a roadside screening device. Basically, the officer skipped the roadside screening test and jumped ahead to arrest the accused. This is permissible in cases where the indicia of impairment are so overwhelming that resort to a screening device is not required. However, in this case, the officer simply relied on his intuition. Thus, a Charter motion was filed which alleged that the accuseds rights were violated. Specifically, a breach of the clients section 8 right to be free from unreasonable search and seizure, and section 9 right to be free from unreasonable detention. On the eve of trial, the Crown called and advised that upon reviewing the motion, they were withdrawing the charges. The client was allowed to keep her licence and was spared a criminal record.