Nicholas Charitsis is a Toronto lawyer specializing in refuse breath tests and drinking and driving charges in the Toronto and area courts.
The accused had the right to consider their options prior to conducting the test, before a charge of Refuse Breathalyzer can be laid,
On Sunday June 28, 2015, the accused was operating her motor vehicle on Hurontario Street near Matheson Blvd in the city of Mississauga.
At this time the accused was observed leaving the area of a liquor licensed premise and was stopped by Constable Kosher of the Peel Regional Police for a random sobriety check.
Constable Kosher spoke with the accused who had an odour of an alcoholic beverage on her breath, her eyes were blood shot and watery, and she admitted to having recently consumed alcohol.
The police officer formed the suspicion that the accused had consumed alcohol and that it was in her blood system.
At 1:16am the accused was given the approved screening device demand and subsequently she outright refused to provide a sample of her breath.
The accused was then arrested for Refusing to Provide a Breath Sample, read her rights to counsel and cautioned.
The trial took place on February 29, 2016 in the Brampton Courthouse.
The Honourable Justice Duncan was presiding. At the trial, defense counsel Nicholas Charitsis cross examined officer Kosher, and then called the accused as a witness at her trial.
Charitsis argued that the “refusal of the accused was not unequivocal”.
In particular, because she asked police constable Kosher whether or not she had to do the test and what the implications would be if she didn’t do the test, “She was in fact contemplating her options”.
Charitsis argued that police constable Kosher took away her ability to decide whether or not to do the test by charging her with Refusing to Provide A Breath Sample.
Even though the accused stated three (3) times “No I’m not doing it”, Justice Duncan explained that “a detainee has the ability to consider their options”, in this case it was evidenced by the fact that the accused kept asking questions about the test, and wanted to call her father to get some advice.
Although, an accused does not have an indefinite amount of time to consider their options, each case will need to be decided on their own facts.
Mens Rea of an unequivocal refusal to take the breath test could not be made out. Case Dismissed.