In R. v. E. the accused was charged with impaired driving. The defence led by Marvin Stern made an application to the trial judge that the certificate of analysis for the breathalyser test given to the accused should be excluded from evidence on the basis that the investigating police officer did not have the legally required grounds to conclude the accused was impaired at the time the officer made a breathalyser demand. The evidence of the investigating police officer was that he waved at the accused to stop at a checkstop as the accused was passing by. The accused gazed forward and went past him until the officer yelled "stop" at which point the accused immediately braked hard and stopped. The officer requested the driver’s licence and when the driver turned to reach to his right the vehicle crept forward. The officer noted the car was still in gear and instructed the accused to put his car in park and the accused did so and produced his driver’s licence. The accused then properly pulled his car over and parked as directed. The officer requested that the accused provide his vehicle registration and the accused opened his glove compartment - when he did so the door popped open and the documents inside fell to the floor. The accused picked them up and handed the officer an air care registration certificate. The officer informed the accused that was not the right document and the accused then produced his registration. The officer testified that by this point he was able to smell alcohol emanating from the vehicle, and the accused had a flushed face and moderately slurred speech. The officer concluded that the driver was impaired and issued a breathalyser demand. While the trial judge accepted that the officer had honestly formed a subjective belief that the accused was impaired, the judge agreed with the defence submission that the evidence in the case was not sufficient to form the legally required grounds to draw a conclusion of impairment sufficient to justify a breathalyser demand. As a result the certificate of analysis from the breathalyser test 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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