Blood Alcohol Measurement Devices and Your Liberty
Of course responsible adults avoid driving after drinking even moderately, but we all understand that it is possible to accidentally drink more than is allowed by law. At times like this, of course, people can fall afoul of the law. In order to preserve your liberty, the statutes are very clear about when and why you may be pulled over by officers of the law, how they may evaluate your condition as it relates to possible impairment, and also, not just how your blood alcohol content may be measured but also just how long all of this process should take. It is not unusual for there to be technical issues which can undermine the legitimacy of charges related to alcohol consumption and driving.
In Ontario Justice Court (ontario paralegal representative) in the matter of, R. v. Tran, 2013 ONCJ 153, the court found that the stop was done in accordance with the law and that there were no delays in the process that could have undermined the process. However, we learn through testimony that the officer administering made a mistake by using a machine that was not properly certified as properly calibrated.
The arresting officer testified that she believed the testing instrument was working properly because the normal green light appeared, which, to her knowledge, indicated that it was ready and in proper working order. However, she also admitted that she had no idea when the instrument had last been tested or calibrated. She told the court that there is supposed to be a calibration or test sticker on the machine, but it was not on this machine that night. According to both officers who were present, these stickers frequently fall off the machines in transit. Neither the arresting officer nor the officer who brought the testing device to the scene tested this machine that night before beginning to administer the test to the accused.
One of the charges faced by the defendant was that he did not or would not produce an adequate sample for the machine to measure.
While the arresting officer relied heavily upon the green light to indicate that the device was working properly in spite of the absence of the sticker, the court did not deem her to be an expert. Absent evidence from an expert, the court opined that nobody can say that in the absence of a green sticker, a green light still guarantees reliability and proper calibration the court could not be satisfied that the demand to produce a sample in the first place was lawful.
Because there was no proof of proper calibration and/or maintenance of the testing machinery the defendant was acquitted of all charges.
The lesson in this case is that a good lawyer with facts in hand can sometimes change what appears to be an obvious win for the prosecution into an acquittal. There are many small details tucked into the law. They are put there for the preservation of your liberties. If those details are absent or are improperly obtained, your freedoms may be preserved.
On the other hand, if you do not seek legal counsel at your earliest opportunity, you may find that the options you might have to defend yourself become more limited. The more time your legal representatives have to gather and evaluate the facts in your case, the greater your chances are of an acquittal.
Remember first of all to drink responsibly and to drive only when you are unimpaired. However, if you find yourself at the side of the road facing alcohol-related driving charges, call Vagans Legal Services at once. We can help