R. v. O.A.B.O.

Charges: (1) Impaired Driving;

(2) Driving While "over 80" mgs.

The client, O.A.B.O., was charged with one count of operating a motor vehicle while his ability to do so was impaired by alcohol and with one count of driving while having a blood alcohol concentration in excess of 80 milligrams of alcohol per 100 millilitres of blood (driving while "over 80" mgs.).

The client was involved in a single car motor vehicle accident. The client drove his car into a pole and into a storefront. When investigated by a police officer, the client admitted that he had been drinking. The police officer made a demand for the client to provide a sample of his breath into a Roadside Screening Device. The client complied and registered a fail. As a result, the client was arrested for driving while "over 80" mgs. and for impaired driving.

At the client's trial, the defence proceeded with an application to exclude from the evidence the results of the analysis of the two breath samples provided by the client to the investigating police officers at the police station. The analysis of these breath samples supported the charge of driving while "over 80" mgs.

The arresting police officer testified that based on the client having failed the Roadside Screening Device test, the odour of alcohol and the client's admission that he was the driver of the car involved in the motor vehicle accident, she formed reasonable and probable grounds to believe that the client was operating a motor vehicle while "over 80" mgs. The police officer admitted on cross-examination that other than the odour of alcohol and bloodshot eyes, there was no other indicia of impairment. The client stood upright and was steady on his feet. The client was appropriately responsive to questions.

The trial Judge was satisfied that the evidence demonstrated that the arresting police officer had a reasonable suspicion that the client had alcohol in his body. Accordingly, the demand made upon the client by the police officer for the client to provide a sample of breath into a Roadside Screening Device was lawful.

With respect to the issue of whether the police officer's evidence demonstrated reasonable and probable grounds to arrest the client for the offence of driving while "over 80" mgs., and more importantly, to support a demand that the client provide two further samples of his breath at the police station pursuant to the provisions of the Criminal Code of Canada, the trial Judge agreed with the defence that the police officer did not have such reasonable and probable grounds. The trial Judge also agreed with the defence that the analysis of the two breath samples provided by the client should be excluded from the evidence pursuant to the Charter of Rights since the client's right to be secure from unreasonable search or seizure, as guaranteed by Section 8 of the Charter of Rights, had been infringed.

The defence argument was that the police officer could not have had reasonable and probable grounds to believe that the client was driving his car while "over 80" mgs. since the police officer was relying on the fail result obtained on a Roadside Screening Device, the functioning of which she really did not understand. The trial Judge agreed with the defence that the demand by the police officer for two additional samples of breath at the police station was unlawful. Since the trial Judge excluded the results of the analysis of the client's two breath samples, the Crown could not prove the offence of driving while "over 80" mgs. and the client was therefore acquitted of that charge.

The trial Judge also acquitted the client of the charge of impaired driving. The trial Judge agreed with the defence that the evidence from the police officer that the client was steady on his feet and appropriately responsive to questioning resulted in a reasonable doubt with respect to the charge of impaired driving.