SANTA GETS BUSTED

Santa gets busted - view dash-cam here.

VOLUNTARINESS - NEED TO PROVE NO THREATS, PROMISES OR INDUCEMENTS

Constables Riddell and Webber arrived at the hospital together to investigate the accused for impaired driving. Cst. Bulow arrived shortly after. At the trial constables Webber and Bulow were called by the Crown. Webber testified that Riddell was present for part of the interaction with the accused but he sent him off to handle other tasks. Webber was also testifed that there conversations between he and the accused for which he did not make any notes and could not recall.

The court held that the Crown failed to prove that the statement was voluntary. The court pointed out that neither officer testified about Riddell's presence during the interaction with the accused, other than he was present. The Crown also did not offer any explanation for his absence.  The court said the Crown should have produced, at least for cross-examination, Cst. Riddell.

The court also held that although it is not necessary for the Crown witness to recall in precise detail all conversations with the accused, the Court must have sufficient evidence before it to determine whether the statement was voluntary. The Crown had to provide some evidence that the conversations did not contain any threats, promises or inducements. In the case at hand, the officer was not asked to confirm that was in fact the case.  R. v. Magnowski, 2011 BCSC 967

S.8 - STRIP SEARCHES RESULTS IN STAYS AND EXCLUSION

Where police conduct an 'unjustified' strip search before taking the breath sample, the court can exclude the breath samples from the evidence. One of the factors the court will take into account in assessing whether the strip search was reasonable, is whether or not the police kept a proper record of the reasons for and the manner in which the strip search was conducted. This was not done in McPhail. The court pointed out that the almost complete failure to make a note of the strip searched weighed heavily in favour of exclusion.R. v. McPhail, 2011 ONCJ 315

Courts have also stayed charges where the unjustified search occurs after the taking of the breath samples and before lodging the accused in cells. R. v. Chowdhury, 2009 ONCJ 478, aff'd [2011] O.J. No. 2171 (SC)

S.8 - FAILING TO STATE OPINION

The officer did not testify that he formed the opinion that the accused's ability to operate a motor vehicle was impaired by alcohol. Despite evidence supporting the objective test, the court was not willing to infer that the officer had the necessary subjective belief to make the breath demand. R. v. Harrison, 2011 BCSC 1571

REFUSAL - OMA: IF YOU CAN'T BREATHE YOU SHOULD NOT BE BEHIND THE WHEEL

The Ontario Medical Association advises physicians who are asked to provide medical information related to a patient's refusal to comply with a breath test to consider several factors. What is their knowledge about the timing and circumstances of the incident? But more importantly, can a medical condition truly be a factor in a person's ability to provide a sample? The OMA says there are almost no medical conditions that could prevent a driver from providing a suitable sample. On behalf of the OMA, Dr. Boadway so eloquently puts it, "If a driver is unable to breathe he or she has no business being behind the wheel of a car, whether drinking or not." Don't Use Medical Excuse to Escape Breathalyzer Medical Doctor Warns, 156(2) Canadian Medical Association Journal at 157, January 15, 1997; OMA Policy Statement on Administrative Driving Licence Suspension, [December 1996] Ontario Medical Review at 39

If you are faced with a medical excuse, encourage your prosecutor to cross-examine the defence expert (physician) on his knowledge with respect to the OMA's position. Rarely, does the physcian who wrote the letter on behalf of the accused, even know what is required to provide a sample of breath.