Weighing suspect breached privacy

An Ontario court has upheld a judge’s decision to acquit a woman of a drunk driving-related charge because police weighed her when taking breath samples at a station.

Marc Labrosse of the Ontario Superior Court of Justice dismissed the Crown’s appeal of Kimberley McLachlan’s acquittal in August 2015. A lower-court judge ruled asking McLachlan to step on a scale after an arrest for an alleged excessive blood alcohol level was a breach of her privacy and subjected her to unreasonable search and seizure.

The breach of McLachlan’s rights meant that evidence obtained from a breath test had to be dismissed.

Court heard that McLachlan failed a roadside screening test after several attempts and later registered a blood-alcohol level of nearly twice the legal limit when tested at a police station.

Labrosse said the demand for McLachlan’s weight represented a serious breach.

“I acknowledge that the weighing of an individual is not as intrusive as the taking of bodily fluids. However, I am still of the view that the respondent had a reasonable expectation of privacy in her weight,” Labrosse wrote in his March 3 decision.

The case began in January 2012 when Ottawa police observed McLachlan driving on a dead-end road.

After noting some erratic driving, police pulled her over and noted a strong smell of alcohol coming from the car, court heard. McLachlan tried to complete a roadside screening test five times before registering a “fail” on the sixth attempt, court heard.

She was then taken to a station where she ultimately registered blood alcohol readings of around twice the legal limit of 80 millilitres, court heard. During that time, when administering a breath test at the station, an Ottawa police officer told McLachlan that it was standard practice to provide her weight, court heard.

McLachlan’s weight became relevant in the case because breathalyzer tests were conducted more than two hours after she was pulled over. Current laws state if tests are not conducted within two hours of the time a person had control of a vehicle, then experts must be brought in to try and determine the level of impairment when they were still behind the wheel.

Court heard a toxicologist needed McLachlan’s weight to complete the assessment, but Canadian legislation does not currently indicate that police are allowed to ask someone to step on a scale or verbally provide their weight