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The defence proved to the court that the accused had no intent to drive. That the accused was not in the vehicle for the purposes of setting it in motion.
The accused was seen getting into his vehicle a 2010 RAM pick up truck. Police spoke with the driver who was seated in the drivers seat and detected a strong odour of an alcoholic beverage on the drivers breath.
Police formed the suspicion that the accused was operating a motor vehicle with alcohol in his body and at 6:58pm read him a roadside breathalyzer demand (Approved Roadside Screening Test).
The accused provided a sample in the approved screening device registered a FAIL.
The accused was arrested for Drive over 80 mgs – Care and Control. The accused was read his rights to counsel, cautioned and read a breathalyzer demand to provide samples of his breath into an approved instrument roadside device.
The accused complied with the officers demand and give a further samples of their breath at the police station. The breathalyzer readings were;
- 114mgs of alcohol in a 100mls of blood, and:
- 112mgs of alcohol in a 100mls of blood
The accused was advised he was over 80mgs and was processed for the charge.
The police officer served all related documents in regards to the occurrence and the accused was released from police custody on a promise to appear.
At the trial Toronto Criminal Lawyer Nicholas Charitsis argued that the accused was not seated in the drivers seat for the purposes of driving his vehicle.
The accused gave then evidence to the Judge stating that he went back to his vehicle and turned the ignition on to charge his cell phone and activate his Bluetooth device so that he could make a call to his girlfriend.
The accused told the Judge that he had had no intention to drive or operate a motor vehicle on that evening.
Toronto Criminal Lawyer Nicholas Charitsis argued that if his clients intention was to drive, he would of put the vehicle in gear and drove away upon entering, rather than remain seated in the drivers side.
Moreover, the vehicle was not parked in a way that it was in danger of creating risk of interference with other vehicles on the roadway.
The Judge ruled that defence lawyer Charitsis was able to rebut the presumption about the accused being in care or control of his vehicle, even though he was found in the driver’s seat.
The Judge said that there was a reasonable doubt regarding what the intentions of the accused was on that evening, and dismissed the charge.
Case dismissed due to no intent to commit the offence.
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