ONTARIO WOMAN CLEARED OF DRUNK DRIVING AFTER BREASTS EXPOSED DURING ARREST.

TORONTO • Despite a blood- alcohol level more than twice the legal limit, an Ontario judge has cleared a woman of drunk driving because, during her arrest, her breasts were exposed by a female police officer who unzipped her sweater in view of two male officers.

In a curious case that hinged on the legal definition of “undergarments,” and whether the woman’s see- through bra qualified, a judge found this roadside strip search violated Krystina D’Andrade’s constitutional right to be free from unreasonable searches.

The dismissal of her charge came despite convoluted arguments from D’Andrade’s lawyer, who could not seem to decide whether he objected under Section 7 of the Charter, which guarantees security of the person, or Section 8, which prohibits unreasonable searches. Judge Joseph W. Bovard decided to “resolve this confusion” by treating it as just a Section 8 argument, which was enough.

Given that a pat down would have sufficed to clear her for weapons, this strip search was so unreasonable, and the effect on D’Andrade so humiliating, that on Friday Bovard excluded the results of her failed breathalyzer tests, leaving the Crown with no evidence.

D’Andrade was arrested a little over a year ago, at 4:45 a.m ., by police officers who noticed her swerving in her lane. They suspected impairment when they saw her stop at a red light “well beyond the crosswalk.”

“When the light turned green, she kept driving and swerving in her lane. The officers put on their emergency lights to pull her over,” the judge wrote. “Ms. D’Andrade switched lanes, went up on the curb with both tires, came down off of the curb and stopped.”

The first officer to speak to her noticed the smell of alcohol. A female officer, identified as McClinchey, arrived within minutes with a breathalyzer, which D’Andrade failed. Later tests would measure her blood-alcohol level at roughly double the legal limit of 80.

The male officer handcuffed her and presented her to McClinchey for a pat-down search. D’Andrade was wearing a tight- fitting sweater, which McClinchey unzipped all the way down. She had assumed, wrongly, that there was a shirt underneath. She had not asked D’Andrade if she could unzip her sweater, nor warned her she would.

As the judge put it, D’Andrade “was dressed up … In these circumstances, I find that whatever articles of clothing she might have been wearing under the sweater were not for public eyes. ”