Despite failing breathalyzer, Sudbury, Ont., man found not guilty of impaired driving

A Sudbury man has been acquitted of impaired driving, despite failing a roadside breath test administered at a RIDE check in the city in 2024. (File)

A Sudbury, Ont., man has been acquitted of impaired driving, despite failing a roadside breath test administered at a RIDE check in the city in 2024.

However, a judge has ruled that he was guilty of the separate charge of driving with more than 80 mg of alcohol in 100 ml of blood, despite the infringement of the Charter of Rights and Freedoms.

The incident dates to June 28, 2024, when the man was stopped at a RIDE (Reduce Impaired Driving Everywhere) program and failed a roadside alcohol screening device (ASD). He was arrested for impaired driving and brought to Sudbury police headquarters for further testing.

Tried calling his lawyer

Once there, he tried to contact his personal lawyer, but by then, it was 12:24 a.m. on June 29. Nine calls were made to three phone numbers the man provided for his lawyer. Voice messages were left, but while many described the situation, they didn’t include the man’s name.

When the lawyer hadn’t called after 45 minutes, police told the suspect he could call another lawyer or use duty counsel, but that they had to proceed with the breath testing within a reasonable time.

The man eventually spoke with duty counsel for about 10 minutes, before he submitted to the test, in which the lowest result was 130 mg of alcohol in 100 ml of blood.

His defence argued that Sudbury police violated his rights when they arrested him for impaired driving. The defence also argued that his right to counsel was violated because police didn’t provide him “with a meaningful opportunity to contact counsel of choice.”

In his decision, Ontario Court Justice Graham Jenner ruled that the sole basis for the impaired driving charge was the fact that the man registered a ‘fail’ on the roadside test.

Impaired charge thrown out

While failing a roadside test is grounds for a charge of driving with more than 80 mg of alcohol in 100 ml of blood, “it cannot provide objective grounds to believe the offence of impaired operation had been committed,” Jenner wrote in his decision.

Police “simply equated being over the legal limit with being impaired. The relationship between BAC (blood alcohol content) and impairment is often the subject of testimony in driving offence cases.”

Because the arresting officer didn’t indicate any other basis for the impaired charge, it was unjustified in this case.

“I do not wish to be misunderstood as concluding that a ‘fail’ on an ASD cannot ever, standing alone, reasonably ground a belief that the offence of impaired driving has been committed,” Jenner wrote.

“There may be cases in which an officer explains, in the context of their training, education, or experience, a reasonable belief that a ‘fail’ result indicates impairment ... I simply had no evidence in this case that the demanding officer was aware of or relied on a connection between BAC and impairment.”

The defence also argued that his right to speak to counsel was violated because the voicemail messages left with the man’s lawyer didn’t include the man’s name.

While that could have been a factor, the judge ruled that it was far more likely that the lawyer didn’t call back because it was just after 12:30 a.m. when the calls were made.

‘Objective grounds existed’

And while the evidence for the ’80 plus’ charge came from the now dismissed impaired driving charge, Jenner said the courts must find a balance between upholding the public’s trust in the rule of law and the need to protect individuals from unlawful actions of the state.

In this case, “I cannot conclude the breaches were serious,” he said.

“This is not a case where the accused was in the dark as to the reasons for their detention and arrest. (He) understood that as part of an investigation related to impaired driving, he was being detained and required to provide breath samples. Objective grounds existed for those breath samples to be compelled. And breath testing, as opposed to other forms of search, is minimally intrusive.”

In this case, while a technical breach of his rights took place, there was no evidence “there was any real impact on (his) Charter-protected interests.”

Jenner ruled that it would be going too far to acquit him completely and would “amount to a disproportionate windfall when the breach had no discernible effect in this case.”

“Balancing these considerations, I conclude that admission of the evidence would not bring the administration of justice into disrepute. The evidence is admitted.”

As a result, the Sudbury man was found guilty of the ‘80 plus’ offence, but the charge of impaired driving was thrown out.

Read the full decision here.

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