Archie's Case — Drive Over 80 — Dismissed

Background
Archie already had a criminal record for drinking and driving. If he were found guilty again, he would receive a minimum of 14 days in jail and a 3-year licence suspension. 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, he should not have blown over 80. At trial, however, the Crown forgot to ask the police officer the wording of the breath demand given to Archie. Without those words being in evidence, there was no evidence of a proper breath demand. Without evidence of a proper demand, the Crown could not use the breath readings. It was a fatal flaw. The Judge dismissed the charge. Archie and the expert never testified.

Archie's Case
Police Report

Between
Her Majesty the Queen, and Archie A.

[2002] O.J. No. 5417

Ontario Court of Justice
Gonet J.

Heard: December 16, 2002.
Judgment: December 16, 2002.
(3 paras.)

Charge:	Over 80, Criminal Code, s. 253(b)
Counsel:	Patrick Travers, Assistant Crown Attorney, Toronto Craig Penney, Criminal Defence Lawyer, Toronto

¶ 1 GONET J. (orally): - The evidence before me is that the arresting officer made a demand from the back of his book. It was read to him. What the demand is - as stated by Mr. Penney - I do not know what the demand was. This being a documentary evidence case, that being a certificate of a qualified technician to be the evidence on behalf of the Crown as to the readings, I have to agree with Mr. Penney, and the certificate and the contents thereof will not be allowed.

¶ 2 The charge then will be marked dismissed.

¶ 3 Thank you.