Over 80 Blog

Police starting to get over 80-investigations right

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When obtaining breath samples from a suspect during an over 80-investigation the police must comply with numerous legal requirements in order for those breath sample results to be admissible in court.  The fact of the matter is that many police officers are simply not aware of all their legal obligations during the course of an over 80-investigation.  The failure to carry out these legal obligations is the battleground upon which most over 80-trials are fought and won.  Many of the legal requirements that the police must fulfill are time sensitive.  The lawfulness of many police actions during the course of an over 80-investigation are determined based on the timing of those actions.  Often, in the course of an over 80-trial, the legality of certain police actions are successfully challenged by the defence as being illegal for being untimely.  Such a successful challenge can lead to the exclusion of the breath test readings and result in an acquittal for the accused person.  These issues typically arise in the scenario where the person is investigated at the roadside and then taken back to the police station to provide breath samples.  Now, however, police in the Greater Toronto Area have begun to set up R.I.D.E. (R.I.D.E. stands for Reduce Impaired Driving Everywhere) programs whereby suspected drunk drivers can be fully breath tested right at the point of inspection without the need to take a long trip to the police station.  Police often times now will set up a spot check point.  They will be equipped, as they always are at these check points, with their roadside screening device.  Now, however, there is often times also a mobile truck on site equipped with full breath testing equipment and private access to a telephone to facilitate the right to counsel under our Charter of Rights.  In this type of scenario, where someone is pulled over and the officer suspects that the driver has alcohol in her system, a demand is made of the driver to provide an initial screening breath sample into a roadside device.  If the driver fails that test, she is walked over to the mobile truck a few feet away where her rights to counsel are facilitated quickly and she is in a position to provide a full set of breath samples.  In this scenario, even officers who are not aware of what their legal obligations might be in obtaining breath samples in an over 80-investigation are usually going to get things right and are less likely to makes mistakes.  This is so because the roadside set up is arranged to meet the legal requirements in an effective and efficient manner.  In this scenario, those breath tests are more likely to be admissible at trial and a conviction is more likely to result.  Of course, this is not to say there is no room for error – only that the likelihood for error is less.


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