“To err is human, to forgive, divine,” wrote English poet Alexander Pope in 1711.
Police are human and thus prone to making occasional mistakes, but they don’t have the authority to “forgive.” However, any mistakes they make while laying driving under the influence (DUI) charges can result in inadervent “forgiveness” for the suspect in the form of an acquittal, dismissal or other favorable outcome of the case.
In fact, DUI police mistakes undoubtedly play a role in the Ontario criminal court system’s inability to secure DUI convictions in more than half of the 20,000 or so impaired driving cases heard annually. For the most recent 2018-2019 reporting period, Statistics Canada reported that of the 20,604 impaired driving cases heard in Ontario criminal courts, only 9,803 (48%) resulted in guilty convictions.
Police mistakes in DUI charges do not automatically result in dismissals and acquittals, but every error that can be challenged by a skilled DUI lawyer weakens the prosecution’s evidence. Experienced DUI lawyers, such as the ones at Mass Tsang, know exactly how various DUI police mistakes can negatively impact the Crown’s case. Whether through pre-trial discussions with Crown prosecutors, or through challenges during trial, skilled lawyers expose such mistakes as part of their efforts to nullify the charges.
Herein, are the top 10 or so police mistakes that can lead to a DUI acquittal, dismissal or other favorable outcome:
Invalid Reason for Making a Stop
With the exception of roadside and mobile sobriety checkpoints, police must have a valid reason for pulling a driver over and detaining them for further investigation, DUI-related or otherwise. If a police officer cannot provide a clear and compelling reason why the driver was initially stopped, any evidence secured following the invalid stop may be ruled inadmissible. Note that recent changes to Canada’s Criminal Code and subsequent court rulings consider license, registration, insurance, and vehicle safety checks to be a valid reason for pulling a driver over.
Errors in Carrying Out Roadside Sobriety Tests
Ontario Police rely on three roadside tests to determine a driver’s potential impairment:
- Standard field sobriety test (alcohol and/or drugs)
- Breath test (alcohol)
- Oral fluid test (drugs)
Police have to follow strict protocols when conducting these tests and any deviation from standard practices and/or errors in carrying out the tests are grounds for challenging the validity of the results, which further compromises any subsequent evidence secured by police. Note that Revisions to Canada’s Criminal Code — Section 320.27 (2) — in 2018 now mean that police do not have to suspect that a driver is impaired before requesting roadside screening by an approved screening device.
DUI Police Report Errors
Any mistakes in official reports drafted by police can be used to challenge the validity of the entire case and its evidence. A mis-dotted “i” or uncrossed “t” may not be grounds for a serious challenge, but if an officer wrote “2:40 a.m.” as the time of a stop when they meant “12:40 a.m.” it calls into question the officer’s ability to accurately report evidence. In short, skilled DUI lawyers study every element of police reports to look for inconsistencies and contradictions that may weaken the reports’ validity as reliable evidence.
Improper Procedures Made During Breath or Blood Testing
As with roadside sobriety testing, police and DUI screening technicians must follow strict protocols in administering breathalyzer and blood screening tests. Minor deviations from following these protocols may weaken the Crown’s case, but significant deviations usually render the test results as inadmissible as evidence. This effectively nullifies DUI cases that are based on such screening.
Timeliness of Breath or Blood Testing
Timing plays a significant role in protocols that must be followed during breath or blood screening, both roadside and at the police station. Police cannot “unreasonably detain” drivers while awaiting for the arrival of a roadside screening device. They also must conduct breathalyzer and blood tests at the police station within three hours of the driver being behind the wheel. With regard to the breathalyzer, two tests need to be successfully conducted within 15 minutes of each other.
Failure to Properly Maintain and/or Calibrate Breathalyzer
Breathalyzer machines and roadside screening devices need to be properly maintained and calibrated on a regular basis, which can sometimes be overlooked by individual officers and/or police departments. Thus, skilled DUI lawyers always investigate the testing and calibration records of screening devices and will challenge any anomalies in the records.
Mistakes Made During Their Sworn Testimony
When presenting evidence at trial, police need to have their stories straight. Skilled DUI lawyers are highly adept at challenging any inconsistencies, omissions or errors that arise during sworn testimony. Depending upon the subject matter, an officer’s inability to successfully rebut the lawyer’s challenge can significantly weaken the evidence being presented. Some cases are favorably resolved in favor of the suspect due entirely to police errors made during their testimony.
Failure to Attend DUI Hearings
Police keep busy and conflicts with their busy schedules sometimes forces them to miss important DUI hearings. While judges typically allow for continuances based on an officer’s inability to attend a hearing, a judge’s patience can be tested when faced with repeated requests from the Crown for continuances. Additionally, the Ontario Court system’s “speedy trial” precedence mandates that DUI trials must be conducted within 18 months. Police—and the Crown—sometimes err by letting the clock run out.
Violating a DUI Suspect’s Charter Rights (Nine and 10-plus)
There are numerous potential Charter Rights violations that police can inadvertently make while arresting DUI suspects. Key among these are failing to advise suspects of their Charter Rights and failing to provide them with a reasonable opportunity to consult with their “chosen” lawyer. Judges tend to frown upon such violations and, when such violations are deemed severe, a judge is likely to dismiss a DUI case solely on the basis of the violation.
Other Charter Rights violations that can compromise the Crown’s DUI case include:
- Failing to provide privacy during lawyer consultations.
- Failing to provide suspects with competent interpretation services when needed.
- Failing to provide “certification” with the breathalyzer testing.
- Unreasonable detention time period following the arrest.
For your Ontario DUI Defence Needs Consult with Mass Tsang
Mass Tsang has successfully defended 1,000s of DUI defendants in the Toronto area by helping those charged with DUI in Ontario win their cases or otherwise secure a favorable outcome. If you or someone you know has been charged with a DUI-related offences, in the Greater Toronto Area, the expert lawyers at Mass Tsang today for a free consultation.