R. v. Lackovic

45 C.C.C.(3d) 80

Reasons

ON CA

Section 234.1 of teh Criminal code permits a peace officer who reasonably suspects that a person "who is driving a motor vehicle or who has the care or contorle of a mother vehicle" has alcohol in his body, to make a demand requiring the person to provide forhtwith a sample of his breath for analysis in an approved roadside screening devise...The phrases "is driving" and "has the care or control" cannot be limited to circumstances of present action. However, the demand should be made as soon as is reasonable possible, allowing only such delay as in reasonable necessary to enable the police officer to carry out his duties. In this case, a demand was made approximately 25 minutes after the actual operation of the motor vehicle by the accused had ceased. On the basis of the evidence adduced, it could not be determined whether the demand was made within a reasonable time of the driving. However, at the time the demand was made the accused still had the care or control of the vehicle and therefore the demand was properly made. The accused was standing by his vehicle when the police officer arrived at th scene and he identified himself as the driver and owner of the car. Following the demand and the failure to comply, the accused authorized the towing of his motor vehicle from the scene and accompanied the tow-truck driver. The accused did not surrender care or control of his vehicle at the time the demand was made of him and he contiuned to exercise care or contole after the demand. In those circumstances the officer was authorized under the Cominal Code to make the demand.

Facts

ON CA

Accused crashed into to a traffic light with his vehicle. When police arrived, (12 min later) the accused was standing close to the vehicle, but not in it. Officer noticed his breath smelling like alcohol approximately 15 min after he had arrived. The police officer then demanded a roadside breath test, while the accused was in the police cruiser but the accused failed to provide a suitable sample, and was arrested.

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