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THE TRIP TO HELL AND BACK / JOHN'S STORY
[The following story is based on the facts of a case which was before the Provincial Court in Nova Scotia in 2011. The names of the people involved have been changed to protect their privacy. The story is told to illustrate the procedures the police and the courts follow in impaired driving cases.]
On January 1, 2011, John and his wife Mary were on their way home from a New Year’s Eve party when they noticed flashing police lights ahead and that there were several cars in a line at what appeared to be a police checkpoint. John felt he was OK to drive because he had stopped drinking at midnight and it was now 4:00 AM. When his car arrived at the checkpoint Constable Smith asked him if he had been drinking. John answered “No”. The constable said “I smell alcohol so I am going to ask you to provide a sample of your breath for the screening device”. John accompanied Constable Smith to the police car where the Constable demonstrated how to use the device and asked him to blow. John blew into the device which registered a “Fail”. At that point Constable Smith arrested John for impaired driving and read a demand that he take the breathalyzer at the police station. The constable also read him his rights from a card he had in his wallet. John was then handcuffed, placed in the back of the police cruiser where he waited for forty minutes before he was taken to the police station. The police would not allow Mary to drive the car home and she was eventually given a ride home by one of the police officers. The car was towed.
At the police station John’s handcuffs were removed and he was placed in a small room with a telephone. Constable Smith asked him if he wanted to speak to a lawyer. John said he did not know a lawyer. Constable Smith then offered to call Duty Counsel and explain to John that he would be able to talk to Duty Counsel free of charge.
John had been in the small cubicle sized room at the police station for over an hour when the telephone finally rang and he spoke to Duty Counsel who turned out to be a young lawyer who was just two years out of law school. After speaking with Duty Counsel for approximately five minutes John hung up the phone and knocked on the door. Constable Smith arrived and asked him if he was now ready to take the breathalyzer test. John said he was and Constable Smith led him in to another room and introduced him to Constable Jones who was a qualified breathalyzer technician. Constable Jones attempted to engage John in conversation for approximately fifteen minutes asking him questions about his evening, what he had been drinking, when he had last eaten and the like. Following the advice he received from Duty Counsel, John never said a word. After approximately fifteen minutes Constable Jones conducted the first test which resulted in a reading of 120. Eighteen minutes later Constable Jones conducted the second test which resulted in a reading of 110. Constable Smith told John that he had failed the breathalyzer and that he would be detained while the paperwork was being prepared. He was placed in a cell. Approximately ninety minutes later Constable Smith brought John back to the cubicle and served him with a copy of the “Certificate of a Qualified Technician
” which had the breath results. He also gave him copies of the “Evidence Tickets
” showing the printout of the test results. Constable Smith also gave John a “Notice of Intention to Seek Increased Penalty
” in the event that he had any previous conviction for an impaired driving related offence. Constable Smith told John that his license was being suspended pursuant to the Motor Vehicle Act
for a period of three months and that he would have a temporary license for the next seven days. He gave him a yellow form entitled “Notice and Order of Suspension
”. John was released after he signed an “Appearance Notice
” issued by a peace officer and was told he would have to attend at Provincial Court in Halifax on February 15, 2011, at 10:00 AM. Had the police not been so busy on January 1st they would have given him a more formal “Promise to Appear
”. John tried unsuccessfully to get a taxi to go home and eventually had to call his father-in-law to come and pick him up.
When he finally got home John was beside himself worried about his boss finding out about the impaired driving charge and whether he might lose his job. He started looking for an experienced criminal defence lawyer and eventually got an appointment for a few days later. When he met with the lawyer he was amazed to discover that his case was not hopeless and that his world would not end because of these charges. The lawyer said he would ask the Crown Attorney to obtain “disclosure” of the police file in regard to the matter and that they would meet to discuss these materials later. A few weeks later John met with his lawyer and they reviewed the disclosure materials. The lawyer was able to show John a number of serious errors the police had made in his case and that these errors might result in the Crown Attorney being unable to obtain a conviction at trial.
On February 15, 2011, the lawyer appeared on John’s behalf at Provincial Court and filed a “Designation of Counsel
” form so that John would not have to personally appear at court on that date. The lawyer went to court and reviewed the “Information
” which was before the court and when the judge entered the courtroom he told the judge that John was pleading “Not Guilty” and asked for a date for trial. A trial was scheduled to occur on July 7, 2011, and was expected to take one-half day of court time.
On April 8, 2011, John completed the course required by the Registry of Motor Vehicles and got his license back having served the three month license suspension under the Motor Vehicle Act.
On June 28, 2011, John drove to meet with his lawyer to discuss trial preparation. The lawyer told John that he would be seeking a meeting with the Crown Attorney prior to trial to discuss his case and that he would attempt to persuade the Crown Attorney not to proceed with the trial given the serious errors that the police had made in dealing with his case.
As the trial date approached John became increasingly nervous because he had not heard back from his lawyer. The lawyer told him that he had a meeting scheduled with the Crown Attorney the next day, which was the day before the trial. John had just arrived home from work the next day when the telephone rang and his lawyer told him that the Crown Attorney would not be proceeding with the charges against him. The lawyer said he would attend at court on John’s behalf the following morning and have the charges dismissed.
The following morning the lawyer appeared at court and after the Crown Attorney advised the court that he would offer no evidence. The court granted the lawyer’s motion to haveall charges against John dismissed.
John knew how lucky he was to have hired a lawyer with the experience and skill to obtain such a great result. Had he gone to trial and been convicted he knew he would have faced a fine which could have been in the $1,200.00 to $1,500.00 range as well as having his license suspended for a further period of a year. He also knew that his insurance would end up costing him $10,000.00 or more per year. The insurance agent had told him that the rates would stay like that for three years or more.
A few weeks after the charges were dismissed his boss told him that had he been convicted of the charges he would have had to let him go.
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