Judge ruled there was reasonable doubt. The accused gave a reasonable defense for not blowing properly, the officer did not give a reasonable opportunity to comply with the officer’s demand for breath samples.
At 11:30pm on June 16, 2012 Police Constable Bates of the York Regional Police observed a vehicle in a parking lot.
The police officer decided to investigate the vehicle because the engine was running and the vehicle break lights appeared to be engaged.
Upon approaching the driver side door the officer noticed the accused sleeping in the driver’s seat and a pair of shoes on the hood of the car.
The officer told the court that he tried several times to wake up the accused by tapping the drivers side window of his vehicle with a flash light.
Finally when the accused awakened he appeared to be disoriented and confused as to his whereabouts.
Officer Bates asked the accused to step out of his vehicle and to accompany him to the police car in order to provide sample of his breath into a breathalyzer.
The accused told Officer Bates that he had a bottle of whiskey in the back and he had consumed another bottle earlier in the evening as he had just broken up with his girlfriend earlier in the day.
The accused also told the officer that he had called his friend to come pick him up from the parking lot because he was in no condition to drive home. He also gave Bates the phone number of his friend and said “call him, you’’ll see.”
Bates testified at the trial that the accused Zhang was not cooperating with the investigation and that he refused to get out of the vehicle. Bates gave evidence that “he removed the accused” from the vehicle and then escorted him to the police car.
At the trial Toronto Criminal Lawyer Charitsis established that the police officer had in fact placed handcuffs on Mr. Zhang behind his back and got him to sit in the police car.
Once Zhang was in the police car the officer demanded that he provide sample of his breath in the breathalyzer.
The police officer testified that Mr. Zhang did not provide a proper or “suitable” sample of his breath into the breathalyzer and therefore he was charged with Refusing to Provide Breath Sample.
At the trial defence lawyer Nicholas Charitsis argued that his client was only given three attempts to blow into the breathalyzer.
Mr. Charitsis argued that it was extremely difficult for the accused to blow into the machine because the handcuffs were on behind his back, and the accused was seated in the back seat of the police vehicle with both his legs facing outwards with his feet on the pavement.
Zhang testified that he tried his best but could not do the test properly because of the awkward position that he was seated in and the handcuffs were extremely tight behind his back.
The judge at trial considered all of the evidence at the trial and applied the principles from Supreme Court of Canada Decision in R. v. WD.
The Judge ruled that he was left with “reasonable doubt” regarding whether the accused intended on circumventing the process by not blowing hard enough to complete the breath test.
The Judge therefore found that Mr. Z was not guilty of the charge.
