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as soon as practicable

Edmonton Criminal Lawyer Ziv > as soon as practicable
04 February
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Approved Screening Devices

Posted by Rory
in approved screening devices, as soon as practicable, Defences, Impaired Driving, Intoxylizer Operation

Approved Screening Device

 

Calibration Logs

For many years I have been thinking about ways to challenge approved screening devices “ASD”.  In R. v. Black 2011 ABCA 349 I was a able to take a case all the way up to the Alberta Court of Appeal on a very interesting issue. I suggested that I was entitled to copies of calibration logs for the devices. At that time every two weeks the approved screening devices were calibrated before being used in service.

When one examined the logs it appeared that the devices they were using then the Intoxylizer 400D  were very unstable. In other words calibration records showed that the devices were sometimes off by as much as 30%. Practically what this meant is that someone with a Blood Alcohol Level of only 70 mg was being arrested because the ASD thought they were 100 mg. This I argued was akin to an arbitrary detention.

The Albert Court of Appeal said that the defence were not always entitled to the logs in a 2:1 decision. The logs were not relevant unless the officer knew the device was faulty. The officer could rather ely on a calibration sticker on the device itself. The exception to this rule was if the calibrator was also the investigating officer. Then the logs were producible.

In any event, shortly after this decision I then argued that if I wasn’t allowed the logs then I was entitled to see the calibration sticker on the ASD. I won a case when this wasn’t provided to me using the Court of Appeal’s reasoning in Black.

Waiting Time

Another very useful decision I came across recently was R. v. Bergen 2014 M.J. No 122. I suggest every impaired driving lawyer have this case handy.

In that case the officer chose to wait 15 minutes before administering the ASD because he saw the Accused pull out a bar and was concerned he may have consumed alcohol within the past 15 minutes. He did not ask the accused and had no specific reason to believe the accused had consumed alcohol within the past fifteen minutes. On appeal the conviction was overturned.  If an officer in those circumstances is not required to wait 15 minutes to administer an ASD, when he see’s a person leave a bar, why would he be required to wait 15 minutes without anything more?

This is an excellent decision on law and

26 November
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Alcohol

Posted by Rory
in as soon as practicable, Defences, Impaired Driving

Taking Samples — Impaired Driving

Case Comment
R. v. Cole 2015 SKPC 109
A recent Saskatchewan Provincial Court decision applies some very important law concerning taking samples “as soon as practicable”.
When the Crown attempts to prove that someone\s blood alcohol limit is “over 80” they usually can do it one of two ways. Remember, the taking of a sample to determine the concentration of blood in a person’s body only tells you what their alcohol level at the time you the test is taken – not at the time of driving.

(1) The criminal code has evidentiary short-cut that allows a court to conclude that the blood alcohol of a person at the time of driving is or was the same at the as the time the test is taken. This is called the presumption of identity. In order for the presumption to apply several things need to be proven including: that each sample was taken “as soon as practicable after the time when the offense was alleged to have been committed”;
(2) Alternatively, the Crown could call an expert to extrapolate times back from when sample taken to when offense was alleged to have occurred.
In R. v. Cole, a classic defense was raised. Mr. Cole argued that samples where not taken as soon as practicable because the police officer’s waited for a tow truck before transporting the accused back to give a sample.

The judge concluded that it was not necessary for both officers to wait for the tow truck because the car was parked in a safe manner only a few blocks from the police station. Also, they could have called another police officer to assist, they could have waited to have his car towed and there were no passengers that had to be dealt with.
Although the delay in this case was short (12 minutes) the judge determined that the police did not act reasonably in the circumstances.

The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably (para 12 R. v. Vanderbruggen [2006] 206 CCC (3d) 489 Ont C.A.

Therefore, the Crown were not allowed to use the presumption of identity. The Crown then asked the judge to take judicial notice of the fact that the accused’s blood alcohol would not have been that different from the time of driving to the time the test was taken. He was not prepared to do that. The Crown needed to call an expert and they failed to do so.