ASD - SAMPLES EXCLUDED WHERE INADEQUATE PROOF OF THE TYPE OF ASD USED

The officer tesitifed that he used an Intoxiliyzer 400D which is an approved screeing device. He also filed a photocopy of the device he used. The photocopy only showed the number 400. The letter 'D' was shown beside the serial number on the device. The court concluded that although the Crown proved that the officer had the subjective belief that the device he used was a 400D, it was not objectively reasonable for the officer to assume the device was a 400D. R. v. Nowakowski, 2011 ABPC 241

For a different approach, see R. v. Gundy, 2008 ONCA 284, where the Ontario Court of Appeal quoted with approval another judge when he said, “what is the likelihood that the O.P.P. would supply its constables with an unapproved device with which to enforce the R.I.D.E. programme?”

SECTION 10(B) - IMPROPER USE OF ROADSIDE STATEMENT

A conviction for drunk driving was overturned because the trial judge improperly used a pre-10(b) roadside statement. The trial judge had to assess credibility in the context of a Charter voir dire. The officer testified that the accused asked to speak to duty counsel and the accused said he asked to speak to counsel of his choice. In ruling against the accused, the court said that the accused was not credible because he lied to the officer at the roadside when he said he had nothing to drink. Despite the fact that the evidence was only being use in the context of a Charter voir dire to assess credibility, it was still improper to use the pre-10(b) evidence against the accused. R. v. Brown, 2011 ONSC 6725

AUDIO RECORDING - INTERCEPTION OF PRIVATE COMMUNICATIONS

The officer audio recorded the arrest of the accused, the trip to the police station, the conversations at the police station, including enabling the accused to call duty counsel, taking breath samples and ultimately giving him a ride home. The accused argued that the recording was an interception of a private communication and ought to be governed by section 184.2(1) of the Code. The court did not agree. The conversations between the police officer and the detainee were not 'private conversations' and the detainee did not have an expectation of privacy in what was being said. R. v. Tigui, 2010 BCSC 1988 

EVIDENCE TO THE CONTRARY - FEVER INUFFIENCIENT TO REBUT PRESUMPTION

Can an elevated but unascertained body core temperature be sufficient to raise a reasonable doubt regarding the actual blood alcohol reading of an accused at the time of an alleged offence.

The defence expert testified that if the accused had been suffering from fever at the time of the breath testing, the results could be inaccurate. An increase in body temperature of 1 degree can affect the readings by as much as 8.9%. 

The Court of Appeal held that since the expert did not have any evidence of what the accused's actual body temperature was at the time of the testing, his evidence merely demonstrated that that the accused might or might not have been over the legal limit.

The court also pointed out that if one were to accept the accused's evidence regarding his drinking pattern, his actual blood alcohol level would have been 60 and his body temperature would have had to be 44.05 degrees (in other words he would have been comatose or worse).  R. v. Kasim, 2011 ABCA 336

ANNUAL COST OF IMPAIRMENT-RELATED CRASHES - $10 BILLION

Research indicates that approximately 12% of the vehicle crashes involving property damage, 20% of the injuries and 40% of the fatalities are alcohol and/or drug related. The annual cost of impairment-related crashes is estimated to be as high as $10.8 billon. Automobile Insurance, Impaired Driving and Victim Compensation Across Canada, 12 M.V.R. (5th) 22