SECTION 8 - FAILURE TO PROPERLY DESCRIBE MEANING OF A FAIL ON THE ASD NOT FATAL

When describing the meaning of a fail result on the ASD the officer forgot to add the phrase, per 100 milliliters of blood, after the phrase 100 milligrams of alcohol. The accused argued that the Crown did not prove the necessary grounds to make the breath demand. The court did not agree. It held that it was sufficient if the court was satisfied that the officer used the device properly and interpreted the fail result to indicate that an offence had been committed under section 253. R. v. Kumar, 2011 ONCJ 496

10(b) - COURTS DISAGREE ON WHETHER FALLING ASLEEP ON THE PHONE IS A LACK OF DILLIGENCE

In R. v. Kvemshagen,2011 ABPC 271, the accused made attempts to contact a lawyer before falling asleep at the phone. He was then asked to provide a breath sample. The court held that the accused was afforded a reasonable opportunity to contact a lawyer but had not been duly diligent in his contact attempts when he fell asleep. A Prosper warning was not required before moving forward with the investigation.

The court came to a different conclusion in R. v. Weeks, 2007 ABPC 344. In that case, the court held that since there was no proof that the accused had fallen asleep voluntarily, it could not be said that he acted without diligence. The police should have roused him and given him another opportunity to contact counsel.

10(b) - DO NOT FORGET TO TURN YOUR ON-BOARD RECORDING DEVICE OFF

Practice tip - the right to counsel includes the right to privacy. Today more police vehicles are being equipped with on-board video/audio recording devices. If you decide to allow the suspect to contact counsel from the roadside, it is important that you not record the conversation. Make sure that you turn off your in car recording devices before you allow the suspect to call counsel from the backseat of your cruiser.

REASONABLE SUSPICION - BAD DRIVING AND ADMISSION TO CONSUMING ALCOHOL 5 HOURS EARLIER WAS ENOUGH

At 2:00 a.m. officers pulled the accused over after he crossed the centre line, almost colliding head-on with a police car and not returning into his own lane for almost 3 seconds. The driving was more than just split second lapse, excessive speed or a rolling stop.The accused admitted that he consumed alcohol 5 hours earlier. There were no other indicia of impairment. The trial judge was correct when he concluded that the officer had the necessary subjective and objective grounds to make an ASD demand. R. v. Mutisi, 2011 ONSC 6138

VIDEO - I AM NOT THAT DRUNK?

Driver tries to take a drink from a roadside device. http://www.youtube.com/watch?v=V9s4rW7wyZA