Friday, March 31st, 2023

Mark’s Case

* Names have been changed to protect client privacy.


253 (1) (b): Operating a motor vehicle with a blood-alcohol concentration that exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

BACKGROUND: Mark was driving a Jeep across the parking lot of the Centrum Plaza in Kanata. He was stopped by an officer with the Ottawa Police, who claimed he was conducting a “moving R.I.D.E. program.” Mark politely admitted to having consumed two beers that evening, and was arrested by the officer after taking a breath test.

When Mark was released from the police station, he was notified that he had been charged with Over 80 after taking two separate breath tests which revealed his blood alcohol content to be over the legal limit.

Read the Summary of Police Allegations

GOALS: Mark understood the possible consequences of being convicted of driving Over 80 in Ontario – license suspension, fines, and even the use of an interlock ignition device. He also wanted to avoid having a criminal record. He hired me to represent him with the goal of getting his Over 80 charges dropped or dismissed.

STRATEGY: It was my belief that Mark’s rights, under sections 7 and 24(2) of the Canadian Charter of Rights and Freedoms, had been violated. There were two problems with the arrest, and both were in conflict with the Charter:

  • The breath test had been administered immediately after Mark left a bar. This means his breath reading was likely skewed by residual mouth alcohol. In order to administer a breath test in a way that respects Charter rights, officers are required to wait until 15-20 minutes have elapsed after the driver has left the location where he or she was consuming alcohol.
  • The police lacked reasonable grounds to stop and arrest Mark on private property (in this case, the Centrum’s parking lot. There was no erratic driving taking place, and Mark had not been speeding.

RESULTS: The judge concluded that the first breath test – without which no arrest and no second test would have taken place – was taken too quickly after Mark started driving. By failing to allow a 15-20 minute delay, the arresting officer had acted in violation of Mark’s Charter rights. In order to encourage the proper administration of justice, the judge dismissed the case from further prosecution.

Read the Judge’s Decision