An arrest for driving under influence of drugs or alcohol cannot be made on the basis of a police officer’s hunch. Before making an arrest, an officer must have reasonable grounds to believe that an offence has been committed. In cases of driving while impaired by drugs, if the officer is unable to form these grounds a field sobriety demand can be made. The standard field sobriety test must be performed forthwith by an officer qualified to perform those tests. If an officer is unable to form the reasonable grounds to believe that you are impaired by drug no arrest should be made and to do so would be unlawful.
When officers fail to satisfy proper arrest protocol defined by the Criminal Code, a defence attorney can argue that any evidence which was subsequently obtained violated the accused’s rights and is therefore inadmissible.
This argument was successfully made in the recent decision of R. v. Cartier, 2015 ONCJ 731 dealing with the arrest of an accused for driving while impaired by drugs.
Ms. Cartier’s lawyer argued that Ms. Cartier’s rights had been violated by the police during the course of her interaction with them. She successfully argued that because Ms. Cartier’s rights were violated that all evidence obtained by the police should be excluded. The prosecution without the results of the urinalysis and drug evaluation testing were unable to prove their case against Ms. Cartier.
Leading up to the arrest, Ms. Cartier, along with her two children, were involved in a single-car collision that resulted with her car in a ditch. A young man witnessed the accused’s driving prior to the accident and gave evidence to the court that she was driving erratically, speeding and failed to halt at a stop sign before the accident. The witness also indicated that when Ms. Cartier exited the car, she was unable to stand up straight, had difficulty balancing and was slurring her speech. This evidence was confirmed by the other civilian witness and the responding police officer.
In response to several of the officer’s questions, Ms. Cartier could not explain how the accident occurred; she indicated that she hadn’t been drinking and wasn’t taking medication; and also said she didn’t think she was injured. The officer did not smell any alcohol on her breath, nor were her eyes red or glassy. Based on this information as well as Ms. Cartier’s diminished motor skills, the officer assumed that she was under the influence of a drug.
The officer placed the Ms. Cartier under arrest for impaired driving at 8:22 a.m., which was half an hour after he arrived at the scene and about 40 Minutes after the accident occurred. Then the officer read her ‘the caution’ and demanded that she undergo an evaluation at the police station to determine whether she was under the influence of drugs or alcohol. The arresting officer, who was the first officer at the scene, was not qualified to perform a field sobriety test or a Drug Recognition test under the Criminal Code.
At the station, the accused was searched and placed in a cell. She was subsequently allowed to speak to duty counsel who had been called after she was searched. She was then asked to perform a standard field sobriety test administered by an accredited female officer who had been told by a senior officer that the test would provide more evidence and grounds for the arrest. The accused then underwent a Drug Recognition Evaluation with an OPP officer (who later testified that he was not aware that Ms. Cartier had already been arrested at the time of the Evaluation). The accused was finally released at about noon of the same day.
The key arguments made by Ms. Cartier’s lawyer were that the police violated her rights guaranteed under section 8 and 9 of the Canadian Charter of Rights. In particular, the arresting officer “did not have both objective and subjective reasonable and probable grounds to arrest the accused” and also, to demand her to submit to the drug evaluation test. Further, her lawyer argued that the officer who administered the sobriety test did not have the authority to do so because Ms. Cartier was already under arrest.
Section 9 of the Charter states that “Everyone has the right not to be arbitrarily detained or imprisoned.” However, the judge at the trial concluded that the arresting officer did not have reasonable grounds to believe that Ms. Cartier’s ability to drive her car was impaired by drugs before he made the arrest, and thus, the arrest violated Ms. Cartier’s rights under the Charter. The judge pointed out that if the female officer who was qualified to conduct the Standard Field Sobriety Test had done so at the scene before an arrest was made, then a failed test done in a timely manner would have possibly provided grounds for the arrest.
In making the arrest, the arresting officer was perceived to be acting on a hunch. He did not check the amount of damage to Ms. Cartier’s car or whether or not her airbags deployed. He also did not find any drug paraphernalia in her car or smell marijuana on her person. The judge concluded that the officer should have been aware that people can suffer head injuries and be unaware of the impact of their injuries, and further, that these injuries can result in the exact symptoms of poor coordination that the accused displayed after the accident. Another potential symptom of a possible concussion was reflected in her behaviour in the police station: she slept the entire time that she was in the jail cell, and had to be awakened for her drug evaluation.
At the trial, the OPP officer who administered the Drug Evaluation testified that he did not have medical training, but was aware of medical reasons that could prevent people from successfully completing the evaluation. Specifically, individuals who had a head injury and concussion would not be expected to complete the test.
With regards to the issue of whether the female officer had the authority to perform the Field Co-ordination tests at the police station, the judge referenced Section 254(2) of the Criminal Code which states that “If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body……the peace officer may, by demand, require the person… to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made….to accompany the peace officer for that purpose”. As Ms. Cartier was already arrested at the time the test was administered the demand to undergo a Field Sobriety Test violated her rights under Section 8 of the Charter.
The trial judge concluded that an arrest made without reasonable grounds is a serious breach of the individual’s rights. Under the Charter, an individual has a right against unlawful arrest and detention, as well as a right against self-incrimination. As a result of the violation of these rights, the judge excluded the results of Ms. Cartier’s two physical co-ordination tests and the urinalysis results.
The Law Firm of Ted Yoannou provides unequalled representation in criminal defense matters including drug and alcohol related offences. We have an excellent reputation based on experience and the zealous defense we provide to every one of our clients. If you are arrested on an impaired charge, call Ted Yoannou immediately so that we can ensure that all of your rights are being upheld and that you receive the best possible defence against these charges.
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A DUI Arrest cannot be based on an Officer’s Hunch that a Driver is Impaired
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