Drunk driving: recent acquittal in February 2017
A client of our firm was charged with operating a motor vehicle with a blood alcohol level greater than 80 mg/100 mL.
On June 26th, 2015, he returned from fishing on the river.
Upon exiting the boat, our client and his friend attached the boat to the trailer of the utility vehicle belonging to our client’s friend.
From about 10 metres away, an ordinary citizen accompanied by his wife and child watched the scene closely.
He noticed that our client had difficulty backing up the utility vehicle in order to get the boat on the trailer.
He called the police since, according to his observations, our client was extremely intoxicated by alcohol.
Once the police arrived at the scene, the citizen identified our client as the one who had moved the vehicle.
The police officers questioned our client and he was arrested for impaired driving. At that time, our client made a spontaneous statement and mentioned twice that he hadn’t driven and that the person who had moved the vehicle had left.
The defence’s theory of the case rested on the fact that the accused hadn’t driven the motor vehicle while impaired. It was essential to emphasize the lack of reliability with respect to the identification of the driver and that it was possible that a person other than the accused was the driver.
The strategy: Focus the cross-examination on the weaknesses in the identification process and the disclosure of evidence. In this case, the way the legal process played out greatly helped the defence obtain an acquittal.
The trial: We demonstrated during cross-examination that the police officers had not provided a description of our client’s physique and clothing during the arrest and that he had no key in his possession.
The ordinary citizen gave a different description of the clothing than the police officers in court.
During cross-examination, one police officer was not able to identify our client in the courtroom.
In the case Judge Sopinka described the weakness of this type of evidence in the following terms:
“The cases are replete with warnings about the casual acceptance of identification evidence even when such identification is made by direct visual confrontation of the accused. By reason of the many instances in which identification has proved erroneous, the trier of fact must be cognizant of ‘the inherent frailties of identification evidence arising from the psychological fact of the unreliability of human observation and recollection.’ […] In R. v. Spatola, 1970 CanLII 390 (ON CA),  3 O.R. 74 (C.A.), Laskin J.A. (as he then was) made the following observation about identification evidence (at p. 82):
“Errors of recognition have a long documented history. Identification experiments have underlined the frailty of memory and the fallibility of powers of observation. Studies have shown the progressive assurance that builds upon an original identification that may be erroneous.”
After one day of hearings, the court rendered a verdict of acquittal with respect to our client.
Please contact our office to obtain the written decision of this case.