SafeRoads v. C.M.

(Leduc Alberta - Notice of Administrative Penalty/Roadside Sanctions/Impaired Driving/Refusing to Blow). Police attended a residence in response to a report of an impaired driver.  The accused/recipient answered the door to the home and was confronted by two RCMP officers. After a brief conversation, the recipient proceed to walk down the stairs of the home and was subsequently arrested for "obstruction" by the police. While being escorted out of the home, the police properly advised that the recipient had the right to contact a lawyer before the police proceeded with their investigation. The accused expressed in no-uncertain terms the desire to speak with counsel. Without ever being offered the opportunity to consult with counsel in direct response to the arrest, Charter and Caution, the police proceeded with an impaired driving investigation. The police made an alcohol screening demand, to which the accused responded with explicit words to the effect, "I am not refusing a breath sample but I want to speak to a lawyer". 

While the law is clear that "right to counsel" is suspended for the purpose of permitting the police to conduct roadside screening for impairment, the suspension of right to counsel does not persist if the accused is arrested for other offences. In this case, the accused/recipient gave clear evidence that the police offered right to counsel and in so doing indicated that they would not proceed with their investigation until the right had been satisfied. The defence argued from well established Supreme Court jurisprudence that once the right to counsel is triggered, police are required to refrain from any attempt to elicit evidence until there has been a reasonable opportunity to consult with counsel or the right has been waived. 

The adjudicator agreed with the defence that the roadside sanction for refusing to blow should be cancelled on grounds that on the balance of probabilities, the right to counsel in the circumstances of this case supported a reasonable excuse for refusing to provide the sample. 

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