Judge acquits accused in drunk-driving case

Court finds officers took too long to inform man of his right to a lawyer

His breath smelled of alcohol, he failed a breathalyzer test and was behind the wheel of a car not equipped with a breathalyzer even though he was legally compelled to have one in his vehicle. But a motorist charged with drunk driving three years ago was nevertheless acquitted last week after a judge ruled police took too long to inform him of his right to a lawyer.

In a ruling handed down April 19, Quebec Court Judge Suzanne Costom ruled that Normand Vachon’s “right ... to a lawyer, as well as his right to be protected from searches ... and abusive seizure (of evidence) were both violated.

“(These) violations were not random . ... The defendant was placed in a situation of vulnerability, and the fact he was not informed of his right to a lawyer prevented access to counsel that could have allowed him to make a clear decision on whether or not to provide a breath sample.”

The determining factor for the court was the near quarter-hour the suspect spent in the back of a Sûreté du Québec squad car while its two officers waited for their colleagues to deliver a portable breathalyzer to the scene of their traffic stop — time Vachon’s lawyers argued ought to have been spent informing Vachon of his right to a lawyer.

“During 14 minutes,” wrote Costom, “the defendant was seated in a squad car without knowing how long he would be there and without knowing his rights. The court can imagine that 14 minutes must have seemed like an eternity for any citizen.”

Vachon was arrested in May 2014 on a charge of drunk driving. The court heard that on May 10, two Sûreté du Québec officers on highway patrol noticed a licence check on a passing vehicle indicating the driver hadn’t paid their permit fee.

Pulling over the vehicle on northbound Highway 15, one of the officers approached Vachon for his driver’s licence. After checking the documentation in the police data bank, the officers found Vachon to be under order not to drive with any alcohol in his system and to only drive a vehicle equipped with a breathalyzer system.

The second officer then returned to the car driven by Vachon, noticed it wasn’t equipped with a breathalyzer system and also detected the odour of alcohol coming from the interior of the vehicle.

Unsure if the smell came from the driver or other passengers of the car, an officer ordered Vachon out of the vehicle, at which point one of the officers smelled alcohol on his breath. Vachon was placed in the back of the SQ squad car — which wasn’t equipped with a breathalyzer — while the officers called for the equipment to be brought to the scene. The court heard that during that time, there was no conversation between Vachon and the officers.

Once the breathalyzer arrived, Vachon failed the test and was placed under arrest, and his rights, including that to a lawyer, were explained to him. Vachon later failed a second sobriety test at the SQ station and the court heard that he had repeatedly refused to talk about getting a lawyer, even though he had been repeatedly reminded of that right.

Costom ruled that the original lapse on the part of the SQ officers in not informing Vachon of his right to legal counsel excluded any evidence collected prior to his arrest.

The Crown has 30 days to appeal.