Lana's Case — Refuse Breath Sample — Withdrawn

Client:  Lana C., Accused
Complainant:  Toronto Police Service, 54 Division
Charge:  Refuse to Provide Breath Sample

Background:  Lana was on her way to an Alcoholics Anonymous meeting. Having just had a nasty spat with her husband, she decided to have a drink to calm her nerves. She stopped along route to her meeting to calm her anxiety, and parked her vehicle in the parking lot of a local strip mall. In her haste, Lana hadn't notice that she had driven part of her vehicle into a snow bank. When she attempted to leave the parking lot, a passerby flagged down a police officer to help Lana free the vehicle from the snow bank. When the officer arrived to assist, he noticed the smell of alcohol on Lana's breath. He demanded Lana provide a breath sample into a roadside screening device. Lana tried but couldn't. She was charged with wilfully refusing to provide a breath sample.

READ THE POLICE REPORT

Goals:  Lana wanted to beat the charge.

Strategy:  On reviewing the disclosure, I discovered a fatal flaw: the officer had, for 28 minutes, delayed making the demand. Rather than wait for trial, I decided to attempt to convince the Crown not to proceed. To do that, I would have to convince the Crown they had "no reasonable prospect of conviction." Putting my best foot forward, I sent the Crown written submissions before the first pre-trial meeting. At that meeting, I failed to convince the Crown they had no case. I then scheduled a Judicial Pre-Trial meeting with the Judge and the Crown. If I wasn't successful at that meeting, we would have to wait for trial.

Results:  At the Judicial Pre-Trial eight weeks later, I again made my pitch behind closed doors with the Judge and another Crown. I also had discussions with the Crown afterwards. The Crown took the entire morning to consider the matter. Our patience and determination paid off. At 12:55 p.m., the Crown stood up and withdrew the charge.

READ THE TRANSCRIPT OF THE WITHDRAWAL