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Reviews of Investigating Impaired Drivers

Section 8 - Breath tests not 'as soon as practicable' where officer waited too long for a tow

The officer waited 45 minutes for a tow truck to arrive before taking him to the police station for the breath tests. The officer should have attempted to get another officer to sit with the vehicle. If he did and there was nobody available, there would be no violation. R. v. McGonigal, 2011 ABPC 183, [2011] A.J. No. 740 


Section 10(b) - Right to counsel After the breath/blood demand is too late

The officer did not provide the accused with his right to counsel prior to making the blood demand. Instead, he waited until after he received a response to the demand before informing of his 10(b) rights. Prior to making such demands or at the latest before requiring answers to such demands, police must tell the accused about his rights under 10(b). R. v. Lawler, 2011 MBPC 53, [2011] M.J. No. 275 


Section 10(b) - "No, what for," was too ambiguous.

The accused response, "No, what for," was too ambiguous and not a proper waiver of his rights under 10(b). R. v. Wycislak, 2011 BCPC 175, [2011] B.C.J. No. 1387


Section 10(b) - "courts differ on Interrupting"

In R. v. Miller, [2011] N.B.J. No. 75 (PC), after 1 hour and 9 minutes the officer interrupted the accused's consultation with his lawyer and asked to speak to the lawyer. The officer told the lawyer that the qualified technician was present and that the police needed to conduct an observation period. Although the officer did not tell either party to terminate the call, the court found that the reason the officer interrupted was because he was concerned about the 2-hour time limit and the loss of the presumption. His words indirectly implied that the call needed to be terminated and this violated the accused's rights. 

In R. v. MacDonell, 2011 ONSC 3495, [2011] O.J. No. 2607, after 50 minutes, police terminated the appellant's call to counsel. The officer testified that in his 13 year career no person ever spoken to a lawyer for 50 minutes about an impaired investigation. He believed that the accused was attempting to thwart the tests. The court concluded that police are entitled to terminate a call where it is 'reasonable' to do so and in the case at hand, it was reasonable. The accused did not complain, nor did he say the advice he received was inadequate.

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