The Prosecution’s Case In R. v. B. the accused was charged with two criminal charges: impaired driving and driving with a blood alcohol level over .08. The prosecution sought to enter into evidence a certificate of analysis created as a result of a breathalyser test of the accused. At issue in the case was whether the police officer had sufficient legal grounds to demand that the accused take a breathalyser test on the night in question. If the police officer did not have sufficient reason to make this demand, the evidence of the certificate of analysis of the breathalyser test would be inadmissible. The evidence of the investigating police officer was that he was part of a check-stop team on the night in question and observed the accused B driving in a middle amber-painted lane with pylons on it - it appeared to the officer that B was trying to avoid the checkstop. The time was shortly after 2 a.m. When the officer flagged the vehicle to stop it did stop and the accused was polite, cooperative, rational and responsive in his answers to the police questions. The officer testified that the accused had slurred speech, droopy eyelids, did not look at the officer, and that there was a strong smell of alcohol coming from inside the vehicle. In addition to the accused who was driving, there was also a second person in the front passenger seat. The officer noticed slow lethargic movements by the driver in producing documents and saliva around the corners of his mouth. The accused pupils did not appear dilated and the officer did not note watery or bloodshot eyes at the scene. The accused had no difficulty walking. The Case for the Defence The defence, led by Marvin Stern, argued that the breathalyser test was completed on the basis of an unreasonable search and seizure in the sense that the investigating officer did not have the legally required reasonable and probable grounds to believe B. was impaired at the time he issued the breathalyser demand. The defence also pointed out that in this case, the officer relied in large part on the fact that there was a strong odour of alcohol emanating from the vehicle. However, there were two people in the vehicle and at no point was the officer able to say that the odour of alcohol came from the accused. The defence argued that this fact differentiated B.’s case from other similar cases where the breathalyser evidence was admitted, because in those cases it was clear that the odour was coming from the accused person. The Result The trial judge concluded that the fact the police officer relied heavily on the odour of alcohol coming from the vehicle to conclude that B. was impaired but was not able to identify the odour as being from B. rather than the passenger was significant. The judge also concluded that the evidence that B. seemed lethargic and had slurred speech was equivocal and could potentially be explained by the time of day at which the stop occurred. As a result, the judge concluded that the evidence of the breathalyser certificate of analysis was inadmissible and the accused was acquitted. * To request a copy of the complete reasons for judgment in this case, please click here. Case Study Disclaimer: The case studies on this web site are intended to be illustrative of various legal situations for which Stern & Albert commonly appear as legal counsel. Every case is unique. Past results are not necessarily indicative of future results and litigation outcomes will vary according to the facts in individual cases. Back to Case Studies

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