Sentence - Judge Promises All First Timers - Jail

In King's County, New Brunswick, Judge Tonning has promised all first time drunk drivers that they will be going to jail. Last year, Tonning doubled the minimum penalty from $1000 to $2000. However, as Judge Tonning pointed out, the increase did little to deter people from driving drunk. Corey Cyr was the first to appear in front of Tonning. He was given 3 days in jail, a $2000 fine, $300 victim surcharge and a driving prohibition. Read full article.

Section 10(b) - No valid Refusal Until Accused Speaks to lawyer

Police informed the accused of his 10(b) rights. Police then read the Breath demand and the accused responded, "No,No."  He then asked to speak to his lawyer. Police next read a 'refusal demand' and the accused replied, "No. I wasn't fucking driving." After speaking to counsel police did not ask the accused whether he changed his mind and charged him with refusal. The court pointed out that a refusal demand is not required under the Criminal Code. However, because police chose to read it, constituted a demand and because he asserted his right to counsel before that demand, he should have been allowed to contact his lawyer and asked again whether he intended to comply. R. v. Dotremont, 2011 MBQB 88,  [2011] M.J. No. 131

Section 8 - Police Entry into garage okay

The officer had received a complaint of an impaired driver and waited for the vehicle near the registered owner's address. When the vehicle pulled into the driveway the officer followed. The vehicle drove into a garage. The officer also entered the garage to speak with the driver. The accused argued that the officer did not have the authority to enter the garage. The court did not agree. The court pointed out that whether entry without a warrant is permitted is a contextual issue. In this case, the garage was always left open and was considered part of the driveway. It did not exhibit an expectation of privacy. The officer was not asked by the accused to leave. R. v. Kandiah, 2011 ONSC 3728, [2011] O.J. No. 2752

Section 10(b) - Slurred Speech pre-10(b) is admissible

The appellant argued that the observations of slurred speech were made before the appellant was provided his rights under 10(b), and like the statements made by the accused the observations of the manner of his speech should also be excluded. While statements made by the accused are inadmissible, a physical manifestation such as slurred speech can be introduced to prove impairment. R. v. Rodgers, 2011 SKQB 244, [2011] S.J. No. 403 

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