Drunk driving: a judgment could complicate the work of the RCMP and prosecutors

The trial of Andrew Daigle – a 30-year-old accused of driving while impaired in July 2020 in Moncton – was going to be banal.

The January 12, 2023 hearing in the Provincial Court, however, took an unexpected turn when Judge Suzanne Bernard shone the spotlight on the breathalyzer used by the RCMP to measure the accused’s blood alcohol level.

She was interested in the certificates of the device.

According to her, these documents only indicate that the typical alcohol sample that was in the breathalyzer – which has a very precise alcohol concentration and is essential to its operation – was suitable when it was analyzed, June 21, 2019.

The judge determined that the document does not explicitly state that the sample was still suitable a year later, on July 22, 2020, when the defendant was arrested.

She therefore refused to admit as evidence the certification of the breathalyzer and the result of the breathalyzer. This completely changed the situation during the trial.

The Crown was only able to support its argument on the observations of the police during the traffic stop which led to the arrest of the accused. Among other things, they noted the smell of alcohol and saw that his eyes were bloodshot.

The judge determined that these elements are insufficient to establish beyond a reasonable doubt that Andrew Daigle drove his vehicle while impaired. He was found not guilty on both counts against him.

The decision was appealed by the Crown. The hearing will take place in the Court of King’s Bench at a later date.

A decision that could have an impact on many other causes

Defense counsel at the trial, Dustin Caissie, says if the decision is upheld on appeal, it will impact the many other such cases that are before the courts in New Brunswick.

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Defense attorney in the case, Dustin Caissie, believes the decision could have a big impact if it is upheld on appeal.

Photo: Radio-Canada / Pascal Raiche-Nogue

It would mean that almost all offenses of this nature are going to be invalid, because the certificate is going to be invalid. What I see in all of my files – and I’ve spoken to other defense lawyers – is that analyst certificates are the same across the province.he said.

Since Dustin Caissie only deals with cases at first instance, another lawyer will take up the torch during the appeal.

It should be Robert McKee, who is a Liberal MP and leader of the official opposition in New Brunswick.

The heart of the matter: the analyst’s certificates

When the police carry out a roadside check and suspect that a driver is impaired, an initial breath test is carried out on the spot. This is commonly called the balloon.

If the suspect fails this test, the police can arrest him and transport him to the station for a baseline test. This blood alcohol test is carried out by a qualified technician using a more sophisticated machine.

If the results confirm that the suspect does have a blood alcohol level that is too high and the police lay charges, they must give him various documents.

One of these documents is a certificate signed by an analyst stating that the standard alcohol sample in the breathalyzer is suitable.

Two such certificates were given to Andrew Daigle, on July 22, 2020, when he failed the reference test at the RCMP station.

It says that the expiration date of the standard breathalyzer sample is June 10, 2021.

But we can also read in the document that the analysts conducted tests and that the standard sample is suitable on June 21, 2019 for use in an approved device. It is this date that poses a problem, according to judge Suzanne Bernard.

At trial, she said that the certificates do not go so far as to say that the standard sample is suitable for all of 2019 and all of 2020.

She therefore considers that the certification of this breathalyzer (and therefore the results of the test undergone by the accused) was only valid on the day of the analysis, i.e. June 21, 2019.