Ashley Elizabeth Kelly, 31, of Sarnia had pleaded not guilty to drinking-and-driving charges leading to an April trial.
During the trial defence lawyer Brain Ducharme said an officer’s demand for breath samples “fell far short of what is required.”
Without reasonable grounds for the demand it was unlawful and therefore violated Kelly’s right, said Ducharme about the July 25, 2017 incident in Sarnia.
Justice Mark Hornblower agreed the officer’s demand did not meet the required standard.
There was some evidence of bad driving in the way Kelly turned a corner and she smelled of alcohol.
Although the officer was looking for other indicators Kelly’s speech was not slurred, her eyes were not bloodshot and she was not unsteady on her feet, said Hornblower.
The remedy for the unreasonable demand was exclusion of the breath-test results, said Ducharme.
Kelly’s blood-alcohol level was one-and-half times the legal limit.
In rejecting Ducharme’s exclusion request Hornblower said the officer’s stop of Kelly was lawful and the investigation was reasonable.
The officer had not been acting in bad faith and the rights violation was at the low end of the scale, said Hornblower.
With the results as part of the evidence Kelly was convicted.
Ducharme sought the minimum $1,000 fine noting Kelly’s blood-alcohol level was at the low end of the scale.
Kelly’s level was at the lower end of the scale but was not the lowest, said Hornblower as he imposed a $1,200 fine and a one-year driving ban.
Source: The Sarnia Observer