Case Law Discussion

[Azure]

I don't think Police Officers have the right to take a breath sample in the vicinity of your own home.

You have the right to drink at home...and there is no way the police officers or the court can prove that Fowler did not consume alcohol once he got home.

So yes, the certificate would have to be thrown out.

[jolinar of malkshor]

Originally Posted by Azure

I don't think Police Officers have the right to take a breath sample in the vicinity of your own home.

You have the right to drink at home...and there is no way the police officers or the court can prove that Fowler did not consume alcohol once he got home.

So yes, the certificate would have to be thrown out.

Thats a good point. And I wonder why his lawyer didn't argue that. His lawyer was basically arguing that the search was unlawful.....The lawyer isn't arguing that actual proof of the evidence such as "how do the police know he was drunk while driving and how do they know he didn't pile down a 26 of whiskey once he got home?"

I guess it all depends on the time between when the call was placed and when the officers arrived. It could be argued that if he did pound down a bottle, it would take a certain amount of time for the alcohol to be digested into the blood stream. But the lawyer isn't arguing this....they only way I can think of the reason why they are not arguing this is because the exwife would testify that subject drank so much at her house and then testified that he drove home.

[Azure]

Originally Posted by jolinar of malkshor

Thats a good point. And I wonder why his lawyer didn't argue that. His lawyer was basically arguing that the search was unlawful.....The lawyer isn't arguing that actual proof of the evidence such as "how do the police know he was drunk while driving and how do they know he didn't pile down a 26 of whiskey once he got home?"

I guess it all depends on the time between when the call was placed and when the officers arrived. It could be argued that if he did pound down a bottle, it would take a certain amount of time for the alcohol to be digested into the blood stream. But the lawyer isn't arguing this....they only way I can think of the reason why they are not arguing this is because the exwife would testify that subject drank so much at her house and then testified that he drove home.

Aha...smarter then a lawyer...who'd a thunk?

I don't know how long it takes for alcohol to reach your bloodstream...but the article mentioned that Fowler had liquor on his breath. Having liquor on his breath is a poor reason to do a breath test.

In the end...since Fowler wasn't actually driving...the cops had no right, nor did they have a reason to do a breath test.

And even if Fowler drank so much at his ex-wifes house...how would she, the police officers or the court know if he was over the limit? No proper evidence, no proper case.

[fredr123]

Originally Posted by Azure

Aha...smarter then a lawyer...who'd a thunk?

I don't know how long it takes for alcohol to reach your bloodstream...but the article mentioned that Fowler had liquor on his breath. Having liquor on his breath is a poor reason to do a breath test.

In the end...since Fowler wasn't actually driving...the cops had no right, nor did they have a reason to do a breath test.

And even if Fowler drank so much at his ex-wifes house...how would she, the police officers or the court know if he was over the limit? No proper evidence, no proper case.

Canlii doesn't have a reported provincial court decision for Fowler and I haven't been able to find it anywhere else. That would have been the level where the argument that you guys brought up with respect to the downing a 26oz-er would have been heard. It's a common argument to make but there are a number of legal presumptions and rules with respect to breathalyzer evidence and evidence to the contrary. Luckily, the law doesn't allow someone to race home, down a case of beer and escape punishment from the law.

Also, note that the officer, B, originally knocked on F's door and had it slammed in his face. He was then sitting in his squad car out front when F came out and asked to chat. B gave F the standard charter warning and caution before discussing anything further. It was at that point the demand for a breath sample was read. The sample was taken later down at the police station.

A witness seeing a particular truck get in an accident, driven by a particular dude no less, plus the evidence of the truck still clinking and still warm is probably a good reason to suspect F was involved in an accident. Again, it's good to know the law has ways to deal with people who drive drunk and attempt to evade arrest. I imagine JofM would be uber-****ed if this kind of thing happened but the drunk driver got off because he managed to beat the cops back to his house

[jolinar of malkshor]

Originally Posted by fredr123

Canlii doesn't have a reported provincial court decision for Fowler and I haven't been able to find it anywhere else. That would have been the level where the argument that you guys brought up with respect to the downing a 26oz-er would have been heard. It's a common argument to make but there are a number of legal presumptions and rules with respect to breathalyzer evidence and evidence to the contrary. Luckily, the law doesn't allow someone to race home, down a case of beer and escape punishment from the law.

Also, note that the officer, B, originally knocked on F's door and had it slammed in his face. He was then sitting in his squad car out front when F came out and asked to chat. B gave F the standard charter warning and caution before discussing anything further. It was at that point the demand for a breath sample was read. The sample was taken later down at the police station.

A witness seeing a particular truck get in an accident, driven by a particular dude no less, plus the evidence of the truck still clinking and still warm is probably a good reason to suspect F was involved in an accident. Again, it's good to know the law has ways to deal with people who drive drunk and attempt to evade arrest. I imagine JofM would be uber-****ed if this kind of thing happened but the drunk driver got off because he managed to beat the cops back to his house

So is it your opinion then that the certificate of analysis was allowed to be entered as evidence?

[jolinar of malkshor]

Originally Posted by fredr123

Canlii doesn't have a reported provincial court decision for Fowler and I haven't been able to find it anywhere else.

Didn't you read the instructions? You were supose to refrain from looking it up. Make a determination and explain why you think that.

[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.

[jolinar of malkshor]

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.

I agree with you Azure that it would be a very hard case to prove for the Crown....I will leave it open for debate and post the trial judges decision tomorrow.

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.

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.

[Gugstanley]

This one will get tossed out. Good guys can't win them all but it was justice enough to make the guy fight off the charge.

[fredr123]

Originally Posted by jolinar of malkshor

Didn't you read the instructions? You were supose to refrain from looking it up. Make a determination and explain why you think that.

Yes I read the rules. Someone mentioned that it would have been a good idea to argue that the guy downed a bunch of booze at home and wasn't drunk when he may (or may not, Crown's gotta prove it) driving. I was trying to see if that argument was actually made and in the process read the decision. My bad...

[jolinar of malkshor]

Originally Posted by Bent Wookie

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.

I believe Fowler is trying to argue that since the police knew they had him as a suspect in the DUI and Leaving the Scene of an Accident.....the police should have obtained a warrant to knock on his door and collect evidence. Since they didn't have a warrant he is arguing that it was an unreasonable search, and therefore any evidence obtained from the questioning including the breath sample should not be allowed as evidence.

Originally Posted by jolinar of malkshor

I believe Fowler is trying to argue that since the police knew they had him as a suspect in the DUI and Leaving the Scene of an Accident.....the police should have obtained a warrant to knock on his door and collect evidence. Since they didn't have a warrant he is arguing that it was an unreasonable search, and therefore any evidence obtained from the questioning including the breath sample should not be allowed as evidence.

I dont buy that for several reasons:
1) Obtain a warrant for what? They did not have reasonable grounds the any evidence of a crime would be in the house and further, they did not have reasonable grounds to even arrest Fowler at that point. Both are necessary for a warrant.
2) Attending Fowler's residence to conduct an investigation was valid. They did not know he was in the residence and upon opening the door Fowlers indictia of impairment was readily apparent through questions used to conduct the investigation.

I think what is important is that courts decide whether police actions are justified or not. Police must stop an investigation and inform an accused of their charter rights upon forming reasonable grounds. The real issue is that reasonable grounds is not defined in the criminal code and varies from person to person and officer to officer. It is then up to the court to determine whether the officers actions were justified and in good faith and if the actions would put the administration of justice in disrepute.

[jolinar of malkshor]

Originally Posted by Bent Wookie

I dont buy that for several reasons:
1) Obtain a warrant for what? They did not have reasonable grounds the any evidence of a crime would be in the house and further, they did not have reasonable grounds to even arrest Fowler at that point. Both are necessary for a warrant.
2) Attending Fowler's residence to conduct an investigation was valid. They did not know he was in the residence and upon opening the door Fowlers indictia of impairment was readily apparent through questions used to conduct the investigation.

I know what what your saying and I agree somewhat....but the police went to his house under the assumtion from the ex-wife that he was a) intoxicated and b) he was the one responsible for the hit and run.

Now as state there is common law that guides this - (Under Common law there is a longstanding principle that people, including police officers, have impliedlicence to approach and knock on someone's door for the purpose of convenient communication with the occupant(s). If the police purpose is to communicate with the occupant(s), there is no search for constitutional purposes. However, if the police approach the residence to secure evidence against the occupant, then a search has taken place and reasonableness enquiry will be undertaken under S.8. Similarly, if the police have dual purpose in mind (communication with the occupant and secure evidence against the occupant), their conduct will constitute a search and S.8 is engaged.)

They pretty much knew that the suspect was going there because a) that is where is lives and b) that is where his ex-wife said he was going. So it is a little touchy.....

What if the police received a tip from his ex wife that he had a grow op in the house? They would most certainly obtain a warrant before arriving at the house to search it. The two are different but similar.

Originally Posted by jolinar of malkshor

I know what what your saying and I agree somewhat....but the police went to his house under the assumtion from the ex-wife that he was a) intoxicated and b) he was the one responsible for the hit and run.

Now as state there is common law that guides this - (Under Common law there is a longstanding principle that people, including police officers, have impliedlicence to approach and knock on someone's door for the purpose of convenient communication with the occupant(s). If the police purpose is to communicate with the occupant(s), there is no search for constitutional purposes. However, if the police approach the residence to secure evidence against the occupant, then a search has taken place and reasonableness enquiry will be undertaken under S.8. Similarly, if the police have dual purpose in mind (communication with the occupant and secure evidence against the occupant), their conduct will constitute a search and S.8 is engaged.)

They pretty much knew that the suspect was going there because a) that is where is lives and b) that is where his ex-wife said he was going. So it is a little touchy.....

What if the police received a tip from his ex wife that he had a grow op in the house? They would most certainly obtain a warrant before arriving at the house to search it. The two are different but similar.

I will have to disagree. Police attended the house to speak to Fowler and continue the investigation. What if his ex-wife was wrong. Police attended, the vehicle was there and in the same state (warm engine, etc) however upon knocking Fowler answered the door and was not drunk thus eliminating him as a suspect. Again, I don' think police went there to gather evidence instead, thye went there to question Fowler abut his whereabouts. Certainly one can see the importance of police testimony and how the perceived events.

As far as the grow-op question goes, police receive 100's of tips re: grow-ops. A tip is simply another tool used to generate a warrant and in many cases is simply the impotus behind the investigation and rarely forms the bulk of the warrant itself. Creating a warrant soley based on informant information simply wouldnt even make it to a judges chambers. Much more information qualifying and validating the informant info is neccessary.

[Azure]

Don't you think the apperance of Fowler pushed the police to preform the breath test...and eventually take him into custody?

To me it seems like how the individual acted upon his own premises pushed the police to arrest him.

Originally Posted by Azure

Don't you think the apperance of Fowler pushed the police to preform the breath test...and eventually take him into custody?

To me it seems like how the individual acted upon his own premises pushed the police to arrest him.

Sorry, I don't follow you.

The breath demand and ultimate test was conducted due to the accuseds arrest for impaired driving.

Fowler emerged from his residence voluntarily upon which, he was arrested based on observations police made upon their interaction with him.

Are you implying that Fowler was arrested because police were angry that he did not allow them entry?? Unfortunatley, I don't think it works like that.

[Azure]

Originally Posted by Bent Wookie

Sorry, I don't follow you.

The breath demand and ultimate test was conducted due to the accuseds arrest for impaired driving.

Fowler emerged from his residence voluntarily upon which, he was arrested based on observations police made upon their interaction with him.

Are you implying that Fowler was arrested because police were angry that he did not allow them entry?? Unfortunatley, I don't think it works like that.

No you went the wrong way here.

I'm wondering how it is possible for the police to come to my house and take a breath test...after I had been out driving and had been accused of impaired driving.

Does that breath test 'prove' to you were driving under the influence? Because I could of just as well started drinking at home.

Unless there is a time limit that it takes the alchohol to reach your blood stream. Obviously there is...because you sure as heck don't feel the buzz instantly after drinking something.

How do you go about proving the person was driving impaired? Is the breath test enough?

I like asking questions.

Originally Posted by Azure

No you went the wrong way here.

I'm wondering how it is possible for the police to come to my house and take a breath test...after I had been out driving and had been accused of impaired driving.

Does that breath test 'prove' to you were driving under the influence? Because I could of just as well started drinking at home.

Unless there is a time limit that it takes the alchohol to reach your blood stream. Obviously there is...because you sure as heck don't feel the buzz instantly after drinking something.

How do you go about proving the person was driving impaired? Is the breath test enough?

I like asking questions.

Sorry I misunderstood.

Obviously the driving part is the toughest to prove if you don't find them behind the wheel. I agree that in this case, knocking on his door at home w/o any real witnesses seeing him driving would be difficult. However, from my understanding, his lawyer didnt argue that.
What is important to remember is that a breath demand (and subsequent breath test) is AFTER an arrest. Meaning grounds would have to be formed that:
a) you consumed alcohol (voluntarily)- ie. inidictia of impairment
b) that you operated a motor vehicle
Police can't go administering breath test for suspicion or to prove the impairment. The horse before the buggy as they say.

I don't think you can fault police for laying the charge. They certainly had reasonable grounds, however a crim court level of proof is much higher and police can't be expected (nor should they) to tri the case before laying the charge.

[Vulcan]

I think the lesson here folks is, don't leave yourself open to your ex ratting you out to the cops. Oh yeah, only a drunk would walk out of the safety of their home to confront the cops in this situation.