Should car breathalyzers be standard?
During case, judge ponders over potential for resource savings
Should all cars be equipped with an interlock device?
One judge is wondering aloud whether that might help curb the number of impaired-driving cases clogging the docket of the Ontario Court of Justice.
Justice Graham Wakefield was presiding in the Oshawa case of Malham Outri, who was charged — and ultimately acquitted — of driving while his blood alcohol was “over 80,” meaning more than 80 milligrams of alcohol per 100 millilitres of blood.
“‘Over 80’ charges consume a substantial amount of judicial resources in the Ontario Court of Justice,” Wakefield wrote in his judgment last month.
“I often wonder whether equally substantial savings in the justice system would result if mass-produced Interlock devices were mandatory in all motor vehicles,” referring to a machine that requires the driver to blow into a breath analyzer before being able to operate the car.
“I suspect such an administrative response would result in a clear reduction in the carnage caused by drunk drivers.”
Wakefield said Outri was “clearly oper- ating a motor vehicle while having consumed sufficient alcohol to produce truncated Intoxilyzer readings of .170 and .150 milligrams of alcohol in 100 millilitres of blood.”
He acquitted him after finding that the arresting officer did not have reasonable and probable grounds to arrest Outri on Feb. 6, 2014, in Pickering, Ont., thereby violating his charter rights. The man’s lawyer, Irwin Isenstein, declined to comment.
Almost 13,000 impaired-driving cases, including “Over 80” charges, made their way to court last year, representing 6 per cent of the total number of criminal cases tried in provincial court.
“The Court is committed to ensuring timely and fair court proceedings in all cases, including impaired driving cases, and continues to look for ways to ensure that all cases are dealt with in a timely fashion,” a court spokesperson told the Star in an email.
Criminal defence lawyer Antonietta Raviele, a former Crown attorney, agreed that impaired driving cases, especially those dealing with “Over 80” offences, take up a considerable portion of the provincial court system’s time.
She noted that police officers must meet a series of charter thresholds and do so in a reasonable time — such as ensuring the arrest is lawful and that right to counsel has been provided — to ensure an impaired driving prosecution is successful.
Otherwise, the defence will seize on the opportunity to argue charter rights violations to try to win an acquittal and potentially extend the trial, something Wakefield highlights in his ruling.
“It leaves a lot of room for error,” Raviele said.
According to Wakefield’s ruling, a police officer started following Outri after he witnessed him do a U-turn and move into several lanes without signalling. When he noticed that Outri swerved on one or two occasions in his own lane, the officer turned his emergency lights on, Wakefield wrote.
The officer noted a strong odour of cologne, and later of alcohol, when he asked Outri to follow him to his cruiser, the judge wrote. The officer testified that Outri walked fine but with “exaggerated leg and arm movements,” but the judge noted that the roads were also slippery and wet.
Eventually, the officer concluded he was impaired and read him his rights and a breath demand.
“The physical indicia of impairment appear minimal outside of the observed driving, and that driving was completed safely while breaking rules of the road,” Wakefield wrote.
He said the breach of Outri’s charter rights led him to be detained, handcuffed and have his car impounded and found that the evidence against him would not have been discovered had it not been for these breaches.
Wakefield’s ruling exemplifies the struggle judges face when they must weigh clear evidence of too much alcohol in the bloodstream — the breathalyzer results — versus the charter rights violations of an accused person.
“The trauma on families victimized by drinking drivers, including their own families, on the investigating officers who see the carnage, on the emergency personnel in hospitals, means all have a tremendous interest in stopping such conduct,” he said.
“However, society has an equally strong interest in a system of justice which is administered properly and not brought into disrepute by devaluing the rights of every citizen. In the case at bar, there were no accidents, no obvious signs of impairment and a very co-operative defendant.” Wakefield threw out the breathalyzer results and acquitted Outri.