Ontario Criminal


Breathalyzer

REFUSAL TO PROVIDE SAMPLE
Arresting officer amply justified in believing that accused’s ability to drive impaired by alcohol

Trial of accused for impaired driving and for failing to provide breath sample. Crown’s version of events was accepted as accused’s recollection of events was unreliable and she was not credible. Accused sideswiped another car. When both cars stopped accused was loud and rude in her dealings with other driver. Pedestrian smelled alcohol on her breath. Accused exchanged information with other driver and drove away without waiting for police. Just before she drove away police officer saw two cars and he followed accused. When accused pulled over she yelled at officer and she demanded to know why she was stopped. Officer saw that she was impaired and he arrested her. Accused continued to be aggressive when she was informed of her right to counsel and when she was given breath demand. She was given considerable amount of opportunities to provide breath sample but she failed to do so. Accused convicted of both offences. Her ability to drive was impaired by alcohol. Police acted reasonably and fairly when they attempted to obtain proper samples. Technician was justified in refusing to give accused another chance to blow because there was no indication that she would have provided sample. Accused was faking and she knew she was doing so. Accused’s rights under s. 8 of Canadian Charter of Rights and Freedoms were not violated. There was no unlawful search or seizure. Based on her conduct arresting officer was amply justified in believing that accused’s ability to drive was impaired by alcohol. Her rights under s. 7 of Charter were not violated. There was no evidence that accused’s decision to not provide suitable sample was influenced by officer’s decision to shield instrument’s screen from her.

R. v. Grant

(Mar. 15, 2012, Ont. C.J., Schwarzl J., File No. 10-17602) 100 W.C.B. (2d) 51 (12 pp.).

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