Ontario Criminal


Breathalyzer

DEMAND FOR BREATH (BLOOD) SAMPLE
Ample grounds upon which to make intoxilyzer breath demand

Accused appealed her convictions for impaired driving and refusing to give breath sample. Citizen testified that accused side-swiped his car. After speaking to him and providing half of her information that was scribbled on piece of paper, accused left scene before police arrived. Officer happened to drive by accident scene, saw accused leave collision and followed her to find out what had happened. Despite officer putting on his siren and emergency flashing lights, accused did not pull over for roughly 500 metres. Officer noted indicia of impairment and arrested accused. Accused was driven to station where she was given numerous opportunities to provide suitable breath sample into intoxilyzer, but failed to do so. Accused contended that at its highest, officer had reasonable suspicion accused had alcohol in her body which would justify demand for breath sample into approved screening device; he did not have reasonable and probable grounds to make demand. Trial judge found following factors provided adequate basis for arresting officer to have reasonable and probable grounds to conclude accused’s ability to operate motor vehicle was impaired by consumption of alcohol: time of day (approximately 1:00 a.m.), accused’s abrupt departure from collision scene, her obnoxious and aggressive demeanour, her purple lips, her red and sleepy eyes, smell of alcohol on her breath and her attempt to avoid breathing directly at officer. Appeal dismissed. Fact officer did not say “magic words” of accused’s ability to operate motor vehicle being impaired by consumption of alcohol was not fatal. It was implicit in officer’s evidence that he had requisite reasonable and probable grounds to make intoxilyzer breath demand and arrest accused. There was ample evidence upon which trial judge could reach conclusion he did. While some of those indicia might be explained by factors unrelated to consumption of alcohol, combination of indicators provided sound basis upon which officer reasonably concluded there were reasonable and probable grounds to believe that her ability to operate motor vehicle was impaired by consumption of alcohol. In addition, while not mentioned by trial judge, objectively officer could also have considered accused’s slurred speech, her refusal to blow into officer’s face and failure to stop for 500 metres after officer activated his siren and emergency lights. When considered together, there were ample grounds upon which to make intoxilyzer breath demand.

R. v. Grant (Mar. 11, 2014, Ont. S.C.J., Durno J., File No. 1848/12) Decision at 100 W.C.B. (2d) 51 was affirmed.  112 W.C.B. (2d) 540.

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