Impaired driving investigations are complex. There are certain rules the police must follow in a DUI investigation, and if they don’t, it can provide a defence in a DUI allegation. There are identifiable categories of mistakes that police can make. In this post, we will discuss the four mistakes that police sometimes make in DUI investigations.
Charter Violations
In Canada, interactions with police when they are investigating a possible criminal offence automatically engage the Charter of Rights. The moment the police pull over a vehicle, they’re detaining the driver for the purpose of an investigation, and the investigation may be as simple as checking license status, insurance, or sobriety. It is a low standard.
Nevertheless, the stop must have a reason and not be arbitrary. The Charter also states, that upon detention, an individual is entitled to be notified, under section 10(a), of the reason for the detention.
The section 10(a) notification should happen immediately upon a police vehicle stop. Upon detention, a driver is also entitled to be notified of their right to counsel under section 10(b), and the police are required to assist the detained person to act upon this right.
There are limits, however. An example could be when a police officer is conducting an investigation using an Approved Screening Device, and they are abiding by the requirements in the Criminal Code. If this happens, then the 10(b) right to counsel is temporarily suspended.
The provisions of the Criminal Code that permit the police to demand a driver provide samples into an Approved Screening Device are strict and must be followed. If the police fail to comply with the requirements of the Criminal Code, any samples of breath obtained may be done so in a way that violates the Charter of Rights.
Criminal Code provisions themselves subject to certain Charter rights. Section 8 of the Charter of Rights stipulates that a search and seizure must be reasonable. The product of an unreasonable search and seizure may affect the admissibility of evidence, the credibility of the police or the reliability of the police evidence.
When the police violate a driver’s Charter rights, the demand to provide breath samples may be illegal and the evidence the police provide may be considered to lack reliability and/or credibility.
Charter rights are important. When the police fail to comply with the Charter of Rights, any subsequent action may provide a defence in a DUI allegation.
Failure to tell the truth
When they conduct an impaired driving investigation, police officers must prepare a report of what happened. In most circumstances, the police in BC must prepare a report to submit to the Superintendent of Motor Vehicles.
In the case of a criminal DUI / impaired driving case, the police must also prepare a report for the prosecutor to use in court.
The expectation is that the police will prepare a complete and detailed description of what took place. The police are, after all, professional witnesses. It is their job to provide a full explanation of what happened, what they observed, and what they did, and that way any judicial actor reviewing the circumstances can understand and see the justification for the police action.
The police are trained to write reports, and their reports should explain how Charter rights were facilitated, steps the police took to facilitate Charter rights, observations the police made, and the authority under which they acted.
In IRP and ADP 90-day driving prohibition cases, the police are required to attach a narrative to their sworn document. The narrative should address all the facts of the case, and the steps that the police took, with the expectation being that their narrative will be factual and truthful.
However, police will often misrepresent evidence, mischaracterize their own behaviour, and fail to give a complete description of what took place. It is not uncommon for police evidence to be thoroughly undermined by independent video, for example.
Failure to comply with the Motor Vehicle Act
In British Columbia, almost all DUI cases start with a 90-day driving prohibition. The driving prohibition may be an Immediate Roadside Prohibition or an Administrative Driving Prohibition alongside a criminal investigation. All IRPs and ADPs are issued pursuant to the Motor Vehicle Act. The Motor Vehicle Act provides the authorization and instruction to issue any such DUI driving prohibition.
The sections of the Motor Vehicle Act concerning DUI driving prohibitions spell out the obligations of the police. In addition to their obligations under the Charter of Rights, and their obligations to provide a comprehensive, truthful narrative, the police are required to comply with the Motor Vehicle Act.
The Motor Vehicle Act specifies the steps the police must follow and also describes some very specific records that the police must generate. Failure to comply with the steps set out in the Motor Vehicle Act, or failure to collect the necessary evidence specified in the Motor Vehicle Act, is a violation of a police officer’s duty and it may be cause enough for a driving prohibition to be revoked upon review.
Steps for reliable breath testing
Breath testing to identify potential DUI drivers is filled with difficulties. The police have a Charter requirement, pursuant to the Criminal Code and the Charter of Rights, to act immediately upon detaining a driver. Securing reliable samples of breath runs counter to this requirement. In other words, when you take a breath test quickly from someone who you just pulled over, the steps to ensure a reliable breath test cannot be properly facilitated.
Any reliable breath test for the purpose of determining blood alcohol concentration from the breath requires that the sample tested be expelled air from the lungs. Any potential contaminant in the mouth may compromise the reliability of the test.
Moreover, the hand-held devices used by the police are incapable of identifying contaminating substances.
Simply put, they do not test a person’s blood. They test expelled air, which may or may not represent alcohol from the blood.
Of course, the police operation of the breath testing equipment is also a huge concern. It is not unusual for an experienced DUI lawyer to identify when the police have failed to comply with reliable breath testing procedures.
When police make mistakes in DUI investigations
Not all mistakes in DUI investigations will lead to a driving prohibition or criminal charge being thrown out. The courts have interpreted factors and fact patterns which can be detrimental to the police case, to the police evidence, or may simply be part of a complex factual matrix that may justify intervention by a tribunal or court.
Everyone seems to hope there is a technicality in their DUI case. Usually, the technicalities are highly technical, and in other words, a review of the evidence by a novice may not reveal the technical defence.
A lawyer versed in the subject and in particular, a lawyer with experience using police breath testers, would better be able to identify a technicality that will lead to the revocation of a DUI driving prohibition or dismissal of a criminal DUI allegation.
At Acumen, our DUI lawyers are trained, not just on how to operate the police breath testing equipment, but to calibrate them and operate the equipment designed to test the police equipment. We own and use police breathalyzers so that we know where technical errors can lead to a defence.
Police evidence may be compromised due to Charter violations, failure to tell the truth, failure to comply with the Motor Vehicle Act or failure to comply with the steps for reliable breath testing.
Our lawyers know how to identify when police evidence can be used to challenge a DUI driving prohibition. If you have received a DUI driving prohibition such as an IRP, ADP or criminal impaired driving charge, give us a call. We will use our knowledge to help you get the best results in your case.