Quote:
Originally Posted by Azure
The police had NO reason to take a breath test.
Even if Folwer 'was' drunk when leaving the scene of the accident...there is NO way to prove that.
Had he been caught trying to get away...then you might have a case.
Charge him for leaving the scene of an accident...if it was indeed his truck leaving...and you have eyewitness account seeing his truck there...but alchohol or the use of alchohol is a moot point in this case.
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I'll try to clear this up.
Impaired driving caselaw represents probably they biggest bulk of case law written on any offence in the criminal code. Generally speaking, this is due to the upteen number of situations/conditions that arise during the event. In addition, it is a common charge laid on 'everyday citizens' and as such is subject to scrutiny on a much wider spectrum.
Although this is a little off topic, I can say that police are subject to certain timelimits on impaired drivers. Presumption states when the breathtest was administered the person had a similar blood alchohol volume they did when the officer formed reasonable grounds that the accuseds ability to operate a motor vehicle was impaired. As far as the breath demand taking place at or near is home, its a non-issue. Based on the totality of circumstances, the officer certainly had reasonable grounds that Fowler had commited the offense and thus was arrested and given a breath demand. Although there would have certainly been some scrutiny over continutiy of Fowler between the time of the accident and the time he got home (unless witnesses at the scene can make a statement as to Fowlers sobriety- but we don't know that).
I am having some difficulty really understanding what the search was. Judging by the discussion over the admissability of the cert of analysis, I assume it was the breath test itself that was deemed as the search, although I do believe the issue was also centered around the police using observations of Fowler in the house as a basis for the arrest. In my view, it was perfectly legal. Police attended Fowler's residence to conduct an investigation and speak to the owner of the vehicle. They did not attend to collect evidence on an impaired driving charge. Police are obligated to investigate crimes. The observations made could be considered 'plain view' observations and as such would be relevant in forming reasonable grounds. Fowler then exited the residence and was arrested based on those observations. He was charted/cautioned and read a breath demand, subsequently registery reading well over the legal limit. I don't see an issue.
My 2 cents.