Defending a DUI: Knocking out the Breath Readings

After being stopped at a RIDE program you are asked to step out of the car and blow into a roadside screening device. The officer tells you that you have failed. You are arrested for driving over 80, read your rights, handcuffed and placed in the back of a police cruiser. The police take you down to the station where you are asked to blow into the breathalyser machine. After a brief wait you are told that your readings were way over the legal limit and that you will be charged with both over 80 and impaired driving. You are eventually released from the station with some paperwork requiring you to show up in court in three weeks.

In the cold, hard light of day the next morning the situation seems hopeless. You were drinking and driving. You got caught. The machine never lies, right?

Well, its not that simple and its certainly not that hopeless. In order for those breath samples you gave at the station to be admissible in court the police have to comply with a number of procedural steps and they have to respect your rights under the Charter of Rights and Freedoms. Did they have “reasonable suspicion” to make a demand for you to take the roadside screening device? Did they read the demand “forthwith”? If the device wasn’t available right away did they allow you to call a lawyer? Did they have “reasonable and probable grounds” to make you blow into the breathalyser? Were the sample givens “as soon as practicable”? The answers to these questions may affect whether the prosecutor can use the breath samples as evidence in court.

Police officers aren’t perfect. They can be over worked and make mistakes. A review of their notes may reveal that there is a defence to the charge that you never realized was possible.


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