Law Cans Episode 3 – R v. Alex (Challenging Breathalyzer Results) with Kyla Lee

R v. Alex. is a 2017 Supreme Court of Canada decision in which the Supreme Court had to determine whether the Crown needed to prove that a police officer’s request that an individual blow into an approved screening device was reasonable before it could admit the results of the breathalyzer without having to call a toxicologist and a technician as a witness.

Kyla Lee is an Associate at Acumen Law Corporation, She is the host of Driving Law, a podcast which focuses on Canadian DUI law. She can be found at @IRPLawyer online.


 

1:20 – An overview of the facts of the case in R v. Alex. A person is pulled over during a seatbelt check in Penticton, British Columbia.  A police officer notices that he smelled an odour of liquor as he approached the vehicle and there was an open beer can on the floor near the passenger side. The driver, Mr. Alex, had “red cheeks” and “watery eyes.” There was nothing else to suggest that the person was impaired.  The driver had no difficulty parking the car and no difficulty exiting the vehicle. The police officer did not take any notes about why he thought Mr. Alex was drunk, but says that he wouldn’t have pulled him over if he did not think he had a reasonable suspicion.  The police officer requires that Mr. Alex use an approved screening device which he fails, which is almost double the legal limit of 0.08. He then takes him to a police station where his breath samples registered .140 and .130 mg of alcohol, which is almost double the legal limit.

1:34 – Introduction to who Kyla Lee is. Kyla is a criminal defense attorney in Vancouver. She is a member of the National College for DUI Defence, the DUI Defense Lawyers Association and the National Association of Criminal Defense Lawyers.  She also has a podcast called Driving Law.

1:55 – What is the difference between an approved screening device and a breathalyzer?  Kyla has several in her office, and here are what they look like.

 

 

6:00 – Are breathalyzers reliable?

8:35 – The result of a breathalyzer can be provided in court by means of a certificate rather than the prosecution needing to call a breath technician to attest to the accuracy of the readings and an expert toxicologist if (1) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, (2) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and (3) an analysis of each sample was made by means of an approved instrument operated by a qualified technician.

14:35 – What did the court rule in R v. Alex? Does a request for a person to do an approved screening device have to be reasonable in order for the presumption to apply?

15:40 – How does a Charter challenge work in practice?

18:50 – When would a breathalyzer request be unreasonable?

20:20 – Are people obliged to speak to police officers at road checks?

23:20 – What are examples where Kyla was able to show that a breathalyzer request was unreasonable?

26:50 – How does British Columbia’s roadside prohibition regime work with respect to breathalyzers?  What challenges can be made to someone to has blown over 0.08 under BC’s roadside prohibition regime?

40:20 – What are Kyla’s thoughts to “don’t do the crime if you can’t do the time?”

41:50 – How will the testing of marijuana work in impaired driving cases once cannabis is legalized?

44:20 – In addition to being a lawyer Kyla also has a marketing business. How does she balance being a lawyer and having a marketing business? What tips would she recommend to people wanting to have a law practice and a side business?