R. v. M.M. (Operate a Motor Vehicle with over 80mg of alcohol in 100ml of blood)


 September 25, 2018  

Charge: Operate Motor Vehicle Over 80

Location: Hamilton Ontario Court of Justice 


Our client was stopped by police after he was observed parking his car at 2:36 am, outside of a bar in the City of Hamilton. At 2:36am, Hamilton Police approached our client. He advised them that he and a friend had just left the bar after they had consumed approximately “two pitchers of beer”. At 2:37am, the Hamilton Police Officer radioed for a roadside breath test device. At 2:47am, the roadside demand was read, following which, at 2:49am the client provided a sample of his breath into the roadside device registering a “fail”. Our client was arrested for operating a motor vehicle with over 80 milligrams of alcohol in 100 millilitres of blood.  


The Supreme Court of Canada has agreed with Parliament that police powers to briefly detain motorists at the roadside, in order to check for sobriety, justifies a suspension of an accused persons’ right to contact counsel without delay. However, where a reasonable opportunity to allow an accused person to contact counsel at the roadside exists, police must accommodate. Failing to do so will result in a breach of an accused’s right to counsel. In this case, there was a 10 to 11-minute delay at the roadside while the accused and police awaited the arrival of the roadside testing device. The issue was whether this was a reasonable opportunity to contact counsel.


Appellate Level Caselaw research showed that the 10-11 minute delay for the arrival of the Approved Screening Device, and the demand that followed, represented a reasonable opportunity to contact counsel. There existed a breach of our client’s right to counsel, allowing for the possibility of exclusion of the breath test results. Always looking to knock out our clients charges at the earliest possible moment, we presented the case law to the Crown at a scheduled pretrial. The Crown agreed that the breach was so significant that he withdrew the charges. 


Our client came to our office with no criminal record, facing this charge. Due to our expertise in impaired driving law, he was able to remain free of a criminal record and was able to maintain his driver’s license after a full withdrawal of charges.