Client Acquitted of All Charges: Impaired Driving and Refusing to Provide a Breath Sample

Successfully defending against charges of impaired driving and refusing to provide a breath sample, or any drinking and driving charge, often requires surgical precision. The Crown need only prove that an accused person’s ability drive was affected, even to a slight degree, by the consumption of alcohol in order to prove a charge of impaired driving. The charge of refusing to provide a breath sample often comes down to whether the demand by the police that the driver provide a breath sample was legally valid or not. Challenging a police witness on this issue requires dissection of the officer’s actions and observations to determine if he followed the letter of the law in making the demand. The wrong question in cross examination can result in an answer that effectively proves the Crown’s case and destroys any defence to the charges.

Mr. MacDonald attacked the refuse breath sample charge on the basis of the police failing to meet the statutory requirements necessary for the demand to be valid. Ultimately the prosecutor was forced to abandon the charge at the close of its case because of evidentiary issues.

On the impaired driving charge, Mr. MacDonald’s cross examination of the two police witnesses rendered their evidence completely unreliable. He established that the two officers observed the client at the same time, yet testified to completely different observations of the client regarding impairment by alcohol. Whereas one officer stated that he smelled a strong odour of an alcoholic beverage on the client’s breath right away, the other officer detected nothing of the sort. One officer said the client could barely stand up, but the other officer found nothing out of the ordinary with the client’s balance. Mr. MacDonald bolstered that evidence by introducing the video recording of the client at the police station shortly after his arrest, which showed him having no trouble walking, standing, or sitting. 

When confronted with this video, the police witness who claimed that the client could barely stand up tried to assert that the client stumbled in the areas of the police station where the camera could not see. The officer also tried to point to parts of the video that he said showed the client about to fall – something which seemed invisible to everyone else in the courtroom. The judge was not convinced, and at the end of the case made a ruling consistent with Mr. MacDonald’s submissions that the officer’s evidence simply could not be trusted or relied upon. The client was acquitted on all counts.