Roy's Case — Refuse Breath Sample — Withdrawn

Client:  Roy S., Accused
Complainant:  Toronto Police Service
Charge:  Fail to Provide Breath Sample

Background:  After a night out drinking with the boys, Roy was heading home. He got into his car. Leaving the parking lot, a few rowdies blocked his exit. Roy honked his horn. They got belligerent; someone kicked the car. Roy jumped out. Then it got messy. For his enthusiasm, Roy's received a bloody nose, a nasty bump on the head, and a smashed rear window. The attackers ran off, and Roy collected himself as best he could. As he started to drive away, a police officer, responding to a call about the fight, pulled him over. Detecting alcohol on Roy's breath, the officer demanded a breath sample. Roy tried six times to blow into the approved screening device, but the assault had left him disoriented, confused, and breathless. Driving home, Roy found himself bruised, beaten, and criminally charged. What a night out!

READ THE POLICE REPORT

Goals:  Roy wanted to avoid a conviction and a licence suspension.

Strategy:  Our defence was simple: Roy had made an honest attempt to provide a breath sample but couldn't due to his unfortunate state of mind and body. I first scheduled a meeting with the Crown. I had hoped to generate some sympathy, and get the charge withdrawn. That hope was misguided, the Crown only wanting to know if Roy "intended to plead guilty." With the pre-trial negotiations over, I focused on beating the charge at trial. If Roy's explanation was accepted, or even if the Judge had a doubt, the charge would be dismissed. I also had a technical argument: the police had too-long delayed making the breath demand (see Lana's case). We scheduled the trial. We waited.

Results:  On the day of the trial, the officer was nowhere to be seen. When the matter was called in Court, the Crown asked for a recess "to phone and see what's going on." Returning to Court, the Crown informed the Judge that "the officer in charge had no idea that today was the trial date," and promptly withdrew the charge.

READ THE COURT TRANSCRIPT