BC Criminal Defence Lawyer Blog

Delayed breath sample may result in “not guilty” from DUI charge

At what point after driving a car can a police officer get a breath sample from a breathalyzer?

Consider this not uncommon situation:

A person driving a car causes a car accident.  I’ll call this person driver X.  Driver X gets out of the car and remains at the scene.  A police officer arrives 15 minutes after the crash.  The officer starts investigating the crash, including talking briefly to driver X, then continues wrapping up the investigation.  Then, 15 minutes after arriving on the scene – once the investigation is winding down, the officer returns to driver X and offers driver X a ride.

During the second conversation between the officer and driver X, the officer smells alcohol on the driver X’s breath.  The officer demands a breath sample.  Driver X gives a breath sample and fails.  The breath sample is given 18 minutes after the officer arrives at the scene and 33 minutes after the crash.

These were the facts in a recent BC provincial court case (R. v. Redgrave, [2008] B.C.J. No. 938).

The result?  Not guilty.

The reason for the ‘not guilty’ DUI decision was that the delay between the time the officer arrived at the scene and the officer demanding a breath sample was unreasonable.  As such, the breath sample was not authorized by law, resulting in an unreasonable search and seizure within the meaning of section 8 of the Canadian Charter of Rights and Freedoms.

If there is a delay between the time a police officer arrives at the scene of a crash and demanding a breath sample, and if that delay is long enough – longer than it is reasonably necessary for the officer to investigate (the accident or whatever else is being investigated) – then there is a possibility that the breath sample evidence won’t be admitted in court.

Section 254 (2)(b) of the Criminal Code states “to provide forthwith a sample of breath…”
The word forthwith means immediately.

Accident victims and accident scene safety are always a priority over obtaining breath samples.  However, once safety concerns are over, the police officer must investigate for impaired driving.  Any delay beyond that which is necessary is unreasonable.  When this happens, impaired driving evidence may not be allowed to be used against you in court.

Note: police officer delay is not to be confused with an intentional delay caused by a driver.