Police officers who suspect drivers of operating a vehicle while having alcohol in their blood may order a breathalyzer test as soon as practicable (Section 254 Criminal Code). If the instrument indicates a level above the permitted level, drivers can then be driven to the station to have a qualified technician administer the test again. If drivers fail again, they are charged with driving a vehicle with impaired faculties, that is driving under the influence, under Section 253 of the Criminal Code. At this point it is important to consult a lawyer specialised in driving under the influence.
Sometimes drivers receive a discharge because the police did not proceed to collect the breath sample ‘‘as soon as practicable.’’
The Court’s justification is as follows: any individual has the right to consult a lawyer AND the right not to be detained abusively. If the police delayed in administering the test (sometimes a delay of as little as 10 or 15 minutes is too long), the Court may conclude that the police should have allowed the drivers to call a lawyer on their cell phone. Consequently, the Judge may annul the breathalyzer results and discharge the driver.
Because of such legal subtleties, it is essential for any defendant to at least consult a lawyer before pleading guilty.
