This is potentially huge, when it comes to impaired driving cases | GTAMotorcycle.com

This is potentially huge, when it comes to impaired driving cases

You have to wonder how many people in Ontario have been convicted of over 80 based on evidence from a faulty machine?
How many suspensions, fines, increased insurance rates and criminal records.
There is little doubt that the maker is already preparing a defence in-depth of their product for the appeal.
The finding was made on the opinion of only one expert.
 
statsman said:
You have to wonder how many people in Ontario have been convicted of over 80 based on evidence from a faulty machine?
How many suspensions, fines, increased insurance rates and criminal records.
There is little doubt that the maker is already preparing a defence in-depth of their product for the appeal.
The finding was made on the opinion of only one expert.
Click to expand...

One of the things mentioned was a potentially faulty sensor, that the witness testified has likely resulted in many "failure to provide sample" charges. Failing to blow is essentially the same as blowing over, based on the penalties involved.
 
Can anyone please please please put a link up to the decision? I tried looking for this case on CanLii, but was unable to find it! This is huge news for both the criminal bar/prosecution. Thanks!
 
Just imagine the amount of people who would try to overturn their previous convictions if this goes through.


Ontario lawyers - "What a time to be alive!"
 
Just from listening to the lawyer . It`s the calibration and testing of the machine that is missing .
 
A government department, failing to perform scheduled maintenance??

This is really, really bad. I question the motivation of the statement that the instrument does not provide any information concerning its margin of error, though. If they DID provide that information, a savvy lawyer could probably make use of that by saying that their defendant had (say) a 1%, but not zero, probability of actually not being drunk even though the machine said there was a 99% chance that they were ...
 
DUI legal bills are somewhere between 10-15K ? so I'm told. That Lawyer right there, worth every nickel, plus a tip.

The two fellows I know that won a DUI both hired lawyers recommended by the law, one RCMP and the other by a Judge. Nobody knows good lawyers like judges.
 
statsman said:
You have to wonder how many people in Ontario have been convicted of over 80 based on evidence from a faulty machine?
How many suspensions, fines, increased insurance rates and criminal records.
There is little doubt that the maker is already preparing a defence in-depth of their product for the appeal.
The finding was made on the opinion of only one expert.
Click to expand...

Is it an opinion or a fact?

If it's a fact only one expert is required.

If it's an opinion what are the tolerances?

If a faulty reading causes one innocent person to be hit with tens of thousands in legal fees, a criminal record, lose their job, community respect, maybe their house or even family is it OK?

If one family loses a loved one to a drunk driver that beat the system is it OK?

I can't understand the failure to blow reading failure. If the cop sees me blowing into the tube and the device says I'm not wouldn't it be time to put it away?
 
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If the issue is the device failing to detect that someone is blowing into it, you would think that the cop would see the discrepancy and act on it, but common sense is not too common any more.
 
I have suspected these types of shenanigans ever since I first learned how breathalyzers work.

Never having run the gauntlet myself, how does a proper DUI charge currently work in Ontario? The web is generally focused on what happens south of the border. Roadside handheld device test, then subsequent test with a more accurate machine somewhere else? (Presuming the Intoxilyzer 8000C is the "more accurate" machine)
 
Hopefully version 8001D will correct the issue.

On a separate note, what if someone whips out bottle of listerine and starts gargling...then they fail the blow part but they pass the walk the line parts.
Just an odd thought.
 
Brian P said:
If the issue is the device failing to detect that someone is blowing into it, you would think that the cop would see the discrepancy and act on it, but common sense is not too common any more.
Click to expand...

All it would take is a little balloon on the tube to show pressure. Totally independent of the internal electronics.

A lot of electronic whiz kids refuse to accept that their device could fail and need an independent backup / fail detector.
 
Generally when an officer stops a driver suspected of IMPAIRED driving, (DUI and DWI are USA based terms), the officer will conduct some roadside sobriety tests. These tests give the officer an indication based upon the results, if a driver is sufficiently impaired to support a demand for a breath sample. It also provides the officer with indicators that he/she can use in their testimony before a court. Then if the officer is so equipped they will make a demand for a roadside screening device. They will then have the driver provide a sample, (unless of course the driver refuses to provide a sample). If the reading is sufficiently high, that the officer has grounds, to proceed, they will then arrest the driver and transport them to the station.

Once at the station the driver will be turned over to the custody of a "breath tech". A demand will then be made for a breath sample, for the breathalyzer. (Even if the driver had refused to provide a road side sample another request will be made. This is so that when they go to court the officers can show that the suspect was given every opportunity to provide a sample. Depending upon the tech and the department policy they may make 2 or 3 demands, (each time they will advise the suspect that a refusal will result in charges of failing to provide a breath sample). Once either two suitable samples, (the suspect provides two samples which are at least 15 minutes apart from each other), to confirm that they are somewhat "close" in value otherwise a third sample may be tken to ensure there wasn't a misreading, (normally the readings are within 20 ml, (or .20) of each other, and will indicate not only the level of intoxication but also if the suspect was "coming down" or still on their "way up" Once suitable samples are obtained the suspect is then returned to the custody of the arresting officer for either release or lodging in a cell.

Generally the breathalyzer is considered to be more accurate and reliable then the roadside screening devices.

Of course the above information doesn't apply if the driver is stopped at a "ride" spot check because there will a breathalyzer onsite in the back of a van.
TwistedKestrel said:
I have suspected these types of shenanigans ever since I first learned how breathalyzers work.

Never having run the gauntlet myself, how does a proper DUI charge currently work in Ontario? The web is generally focused on what happens south of the border. Roadside handheld device test, then subsequent test with a more accurate machine somewhere else? (Presuming the Intoxilyzer 8000C is the "more accurate" machine)
Click to expand...
 
hedo2002 said:
Generally when an officer stops a driver suspected of IMPAIRED driving, (DUI and DWI are USA based terms), the officer will conduct some roadside sobriety tests. These tests give the officer an indication based upon the results, if a driver is sufficiently impaired to support a demand for a breath sample. It also provides the officer with indicators that he/she can use in their testimony before a court. Then if the officer is so equipped they will make a demand for a roadside screening device. They will then have the driver provide a sample, (unless of course the driver refuses to provide a sample). If the reading is sufficiently high, that the officer has grounds, to proceed, they will then arrest the driver and transport them to the station.

Once at the station the driver will be turned over to the custody of a "breath tech". A demand will then be made for a breath sample, for the breathalyzer. (Even if the driver had refused to provide a road side sample another request will be made. This is so that when they go to court the officers can show that the suspect was given every opportunity to provide a sample. Depending upon the tech and the department policy they may make 2 or 3 demands, (each time they will advise the suspect that a refusal will result in charges of failing to provide a breath sample). Once either two suitable samples, (the suspect provides two samples which are at least 15 minutes apart from each other), to confirm that they are somewhat "close" in value otherwise a third sample may be tken to ensure there wasn't a misreading, (normally the readings are within 20 ml, (or .20) of each other, and will indicate not only the level of intoxication but also if the suspect was "coming down" or still on their "way up" Once suitable samples are obtained the suspect is then returned to the custody of the arresting officer for either release or lodging in a cell.

Generally the breathalyzer is considered to be more accurate and reliable then the roadside screening devices.

Of course the above information doesn't apply if the driver is stopped at a "ride" spot check because there will a breathalyzer onsite in the back of a van.
Click to expand...

Is it possible for someone to not be able to blow long enough or hard enough to give a sample? What happens then? Are they assumed to have done that on purpose?
 
Baggsy said:
Is it possible for someone to not be able to blow long enough or hard enough to give a sample? What happens then? Are they assumed to have done that on purpose?
Click to expand...

Generally an officer will as the person is blowing encourage them to keep blowing until they hear an audible telling them they have obtained a sample. The officer will also observe the person to ensure they are making a seal with the mouthpiece and their lips. If the person doesn't blow enough to provide a sample then the officer will advise them that no sample was obtained, and provide them with an opportunity to retry.

It is at the officers discretion as to how many attempts make it apparent that the person is not making an attempt to provide an adequate sample. If the officer is satisfied the person was deliberately making an effort not to provide a suitable sample the person is charged with failing to provide a sample, the officers makes notes as to what steps they took to encourage a suitable sample, and any observations the officer made in relation to attempts to obtain a sample.

They will also generally ask if there is a medical condition that "may" prevent the person from giving an adequate sample. If one exists the officer "may" elect to demand a blood sample in lieu of a breath sample. If this route is selected then the person is transported to a hospital for the purposes of obtaining said sample, which is drawn with the officer present and then remains in the officers custody and sent to be analyzed.
 
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