R. v. Phillips

[1988] O.J. No. 415


C.A. No. 166/85

this was an appeal from a judgement setting aside the accused's acquittal on a charge of driving over 80 and ordering a new trial. Two issues were reaised, namely, whether thebrethalyzer test occured "as soon as practicable" after the commission of the alleged offence as required by s. 241(1)(c)(ii) of the c.c.c. and whether the presumption created by s. 241(1)(c)violated the preseumption of innocence as guaranteed by s. 11(d). The accused was stopped and arrested after the police noticed bad driving. The officers called a tow truck to remove the accused's vehicle from the street and impound it. On the way to the police station the officer stopped another person and placed him under srrest. They arrived at the police station approx 40 minutes after the first arrest. the breathalyzer test commenced at about 50 minuts later and finished at one hour and 13 minuts later. the reading was 110. the accused did not testify at the the trial. at the conclusion of the Crown's case the accused moved fro a dismissal of the charge on the ground that the tests had not been taken as soon as practicable and the motion was grandted. The trial judge conclued that the 2 delayz could have been avoided. appeal was dissmissed


C.A. No. 166/85

Because there have been 2 delays and the tests were not conducted as soon as practicable the appeal was dismissed