Charge Withdrawn: Refusing to Provide a Breath Sample

We generally do not allow the police or other agents of the government to force citizens to incriminate themselves. Forcing someone to give evidence against himself triggers an abhorrence in a free society, which stems from our collective memory of the "Star Chamber" and other inquisitions of early modern Europe where accused blasphemers or dissidents were forced to make confessions under threat of torture. One of the few exceptions to this rule is that, in certain circumstances, the police can require a person to provide a breath sample in order to determine their blood-alcohol concentration to prove the offence of driving with more than the legal limit of alcohol in one's system (often called "over 80" because the legal limit is 0.08 milligrams of alcohol in 100 millilitres of blood).

The client was charged with refusing to provide a breath sample at the police station after a demand was made. If found guilty, the client faced the same penalties as if he were convicted of drinking and driving, which included a high fine and a driving prohibition. Because of a prior record, he also faced guaranteed jail time.

Mr. MacDonald represented the client at trial date after trial date, but by the time each trial date came the police had still not provided all of the disclosure that the client was constitutionally entitled to. Mr. MacDonald insisted on obtaining copies of the police radio calls, all video of the client at the police station, and other items. Most importantly, Mr. MacDonald required the notes of the police officer who refused to release the client from jail after he was charged and ordered that the client undergo a strip search. Mr. MacDonald took the position that this was an arbitrary decision to detain the client in order to extra-judicially punish him for not cooperating with the police, which led to a humiliating strip search.

The existence of that officer's notes was denied by police until the final trial date, when they suddenly materialized. In the eyes of Mr. MacDonald this was simply too late, and by that point the prosecutor was of the same view. The charge was withdrawn.