COLIN PERKEL, THE CANADIAN PRESS<\/p>\n
TORONTO \u2014 A police officer\u2019s demand for a breath sample from a motorist who smelled of alcohol but otherwise showed no signs of being drunk was reasonable and constitutional, Ontario\u2019s top court ruled Friday.<\/p>\n
The decision, contrary to findings from two lower courts that acquitted him, means Andrew Schouten will now have to face a new trial on a charge of drunk driving.<\/p>\n
\u201cIt is not necessary that a person show signs of impairment to found a basis for making a roadside breath demand,\u201d the Court of Appeal said. \u201cAll that is required is that the police officer making the demand has reasonable grounds to suspect that a person has alcohol in their body.\u201d<\/p>\n
The case arose when the officer smelled alcohol on Schouten\u2019s breath during a routine traffic stop near Brockville, Ont., on an evening in June 2013. The driver admitted to having been drinking \u2014 but said his last drink had been 10 hours earlier although he couldn\u2019t provide details as to how much or what he had drunk.<\/p>\n
The officer then asked for the breath sample. Schouten failed and was arrested. Further tests at the police station showed him to be well over the legal limit.<\/p>\n
At trial before Ontario court Judge Richard Knott in 2014, Schouten argued the breath-sample evidence should be thrown out because the officer had demanded the breath test without good reason and therefore had violated his charter rights.<\/p>\n
Knott agreed the officer lacked reasonable grounds to suspect Schouten had alcohol in his body.<\/p>\n
\u201cThe accused showed no signs of impairment, he was polite and co-operative throughout, and followed all of the officer\u2019s directions without difficulty,\u201d Knott wrote. \u201cMost importantly, he gave evidence that his alcohol consumption had occurred over 10 hours previously.\u201d<\/p>\n
As a result, Knott found the breath demand violated the Schouten\u2019s rights, excluded the evidence, and acquitted the accused.<\/p>\n
The prosecution appealed to Superior Court, which earlier this year sided with Knott\u2019s reasoning and upheld the acquittal, prompting the Crown to turn to the province\u2019s highest court.<\/p>\n
The Court of Appeal agreed to hear the case because the lower court justice was \u201cclearly wrong\u201d in upholding the finding of constitutional breach. The court further found that Schouten\u2019s lack of visible signs of impairment did not make it wrong for the officer to ask for a breath sample given that the driver smelled of alcohol.<\/p>\n
\u201cThe fact that his last drink was 10 hours earlier \u2014 even when combined with the absence of indicia of impairment \u2014 did not negate the possibility that he still had alcohol in his body,\u201d the Appeal Court ruled.<\/p>\n
As a result, the court said, the officer\u2019s suspicion that the man was impaired was reasonable \u2014 and so was the demand for the breath sample \u2014 meaning the evidence should not have been excluded.<\/p>\n
The court set aside the acquittal and ordered Schouten to stand trial again.<\/p>\n
Source: Canoe.com<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"