TEN-MINUTE DELAY FREES ACCUSED DRUNK DRIVER
Ten-minute breathalyzer gap ‘inexcusable’
Police officers are on notice to hustle with their breathalyzers now that an Ontario judge has acquitted an accused drunk driver because of “a constitutionally inexcusable delay of approximately 10 minutes.”
At issue is the meaning of the word “forthwith,” an archaic synonym for “immediately,” which the Criminal Code sets as the standard for how quickly a breath test must be administered after a police officer develops reasonable suspicion of drunk driving.
The law does not set a number of minutes, but as the ruling by Judge Melvyn Green concludes, unless there is some unusual problem like safety concerns at the roadside, 10 or 11 minutes is not “forthwith.”
For a police officer to take that long to obtain a bodily sample, in the absence of a judge’s order or a call to a lawyer, violates the Charter of Rights and Freedoms, the judge ruled.
In this case, the judge refused to admit a test taken later at the police station showing a blood-alcohol level as much as double the legal limit, and with no other evidence against him, the accused walked free.
Hugo Buenrostro-Ramirez, in his late 20s, was having an argument with his girlfriend Jasmine Ruiz as he drove his BMW in Toronto late one night in September 2014. They had been at his apartment. Ruiz was “pretty loaded,” as the judge put it, on tequila, vodka and Jägermeister. She did not know what he had to drink, other than a tequila and juice she mixed for him.
As they drove to a friend’s house, she said she had forgotten her purse, which led to a “heavy argument.”
She testified she suspected she may have been a “distraction” to him, and was facing him from the passenger seat when he failed to stop at a red light and slammed into the back of a Dodge, driven by Andrasne Mida, with her husband Andras.
What happened next was clearly recorded by police dashcam videos.
Officer Rachid Saib, who had served with Toronto Police for six years but was working his first shift on traffic patrol, was the first to notice possible signs of impairment, including talkativeness and a “medium” smell of alcohol. That prompted Saib to say, informally, “We’re going to put a test on you,” which set the clock ticking.
Buenrostro-Ramirez mentioned the argument, which apparently triggered Saib’s concern about possible domestic violence.
“For a whole variety of reasons, some of which will remain a bit of a mystery to me forever, the officer ended up doing all sorts of things and wasting all sorts of time and asking repeatedly the same questions,” said David Burke, Buenrostro-Ramirez’s lawyer.
Saib could have given the breath test in about a minute, Burke said, but instead was asking where Buenrostro-Ramirez’s licence was and what he had been drinking.
The Crown argued that, by this point, Saib was “riding two horses,” by investigating both a possible drunk driver and a possible domestic assault, and so a delay in administering the breathalyzer was justified.
But the judge did not agree. He found the officer’s questions were “inessential,” and the delay in giving the test was “not so much a product of divided investigative loyalties as it was his own indifference to his statutory and constitutional obligations.”
As he put it, the arresting officer was “off on his own unfounded frolic. He may have believed he was ‘doing the right thing’ but his belief had no basis in shared reality.”