Archie's 1st Case — Drive Over 80 — Dismissed

Client:  Archie, Accused
Complainant:  Toronto Police Service
Charge:  Over 80, Criminal Code, s. 253(b)

Background:  Archie explained that he already had a criminal record for drinking and driving, but that he had somehow managed to get himself charged with over 80 — that is, driving while having more than 80 milligrams of alcohol in 100 millilitres of his blood. If he were found guilty, he would receive a minimum of 14 days in jail and a 3-year licence suspension. He was understandably worried about going to jail, losing his licence, and the sky-high insurance rates he could be facing.

READ THE POLICE REPORT

Goals:  Archie wanted the charge withdrawn or dismissed.

Strategy:  With Archie's record, I knew that the Crown would have no sympathy. I received and reviewed the disclosure from the Crown. Since there was no obvious weakness in the Crown's case, there was no point in trying to negotiate a withdrawal of the charge. We scheduled the trial. Our defence was that the breath machine was mistaken. We hired an expert. The expert reported that, based on Archie's actual alcohol consumption, Archie should not have blown over 80. I planned to have both Archie and the expert testify at trial to raise a reasonable doubt about the accuracy of the breathalyzer results. If the Judge accepted their evidence or had a doubt based on their evidence, the Judge would have to dismiss the charge (see Alex's case, for example).

Results:  The morning of the trial arrived. Archie, our expert, and I were ready for battle. But the battle was short lived. Archie and the expert never testified. Here's why. When the arresting officer testified, the Crown forgot to ask him about the wording of the breath demand given to Archie. Without those words being in evidence, there was no evidence of a proper breath demand as required by the Criminal Code. Without evidence of a proper demand, the Crown could not use the breathalyzer readings as evidence. It was a fatal flaw. The Judge dismissed the charge. Archie and the expert never testified. Afterwards, I walked Archie to the Clerk's office, obtained a pardon application kit, placed it in his hands, and urged him to apply for a pardon.

READ THE JUDGe's dismissal
READ ARCHIE'S 2nd CASE