Our client was arrested by the Montreal police for a road safety offence. The observed symptoms were alcoholic breath and glazed eyes. He was ordered to blow into the breathalizer. The client tried three times and the results were ‘‘FLO INS’’ (insufficient breath). The officer claimed having given clear instructions. The client said he sincerely tried, but that the officer interrupted him by pressuring him. Following these three attempts, the officer told him it was over and that he was doing on purpose. The client objected and offered to follow him to the station or even to submit to a blood test: he wanted to comply with the order. When he signed his commitment to appear in court, he even added, ‘‘I want to try the breathalizer test!’’ The client was charged with refusal to submit a breath sample in accordance with Sections 254 and 255 of the Criminal Code.
Our criminal lawyer Laurent Morin determined that the best strategy would be to go to court. The peace officer testified that in his opinion it was like in baseball: ‘‘three strikes and you’re out.’’ Mr Morin pleaded that this logic was not valid.
The Judge finally acquitted our client on two distinct bases : doubt on the actus reus (the act of having failed to breathe) and doubt on the mens rea (the intention, because jurisprudence indicates that if right after the refusal, he changed his mind, then the peace officer normally should have allowed him to breathe into the approved instrument).
Not all Mr Morin’s clients are acquitted. See notice.
