Rick Vaive gets of Impaired Driving Charges

[coyo]

Again, the 2 hour window is ONLY for the test results to stand on their own in court. Anything over the 2 hour window has to be supported by the scientists at the CFS. It happens regularly and is not a big deal. The 3 hour window is the important one.

so it still begs the question: what's the rationale for this "2 hour" window?

[Poser]

from calvin barry blog...

Feb 22, 2012 - 5:32 PM

On trial. Rick Vaive (centre) checks his cellphone as he leaves the Newmarket courthouse with lawyer Calvin Barry (left) and Vaive's wife, Joyce. Torstar file photo

Former Toronto Maple Leafs great Rick Vaive told different stories to police officers who arrested him for impaired driving and during his court case, the Crown said today.
Mr. Vaive is charged with impaired driving and driving with more than 80 milligrams of alcohol in 100 millilitres of blood after a traffic stop in 2009. He has pleaded not guilty.

After being arrested by York Regional Police in Vaughan July 14, 2009, Mr. Vaive told York officers he had consumed one beer before he got into his truck following a golf game in Gravenhurst, prosecutor Jon Fuller told the court. However, while testifying, Mr. Vaive admitted to drinking six beers, he added.

Also, when questioned by York officers, Mr. Vaive admitted to one rest stop, Mr. Fuller said. But, during the trial, Mr. Vaive testified he had stopped several times, he noted.

Mr. Fuller also argued it is odd Mr. Vaive’s travelling companion, Bill Derlago, testified he did not see a large urine stain on Mr. Vaive’s shorts, which Mr. Vaive testified had appeared after a second rest stop between Gravenhurst and Vaughan.
Mr. Derlago reportedly testified he believed Mr. Vaive was fit to drive.

“It’s noticeable,” Mr. Fuller said of the stain when Mr. Vaive was pulled over by York police. “It’s something that isn’t in dispute that it’s there.”

Mr. Fuller suggested two possibilities: either the stain appeared after Mr. Vaive dropped off Mr. Derlago in Vaughan or Mr. Derlago missed the stain. If the latter is true, the power of Mr. Derlago’s observations during his testimony should be questioned.

Earlier in the day, Mr. Vaive’s lawyer, Calvin Barry, picked through testimony and records of several witnesses and argued to the court his client’s rights, including those protecting the right to contact a lawyer and against an unreasonable search, were violated.

When York police pulled over Mr. Vaive’s vehicle in Vaughan, the former hockey player called a civil lawyer, who said he needed criminal counsel. The civil lawyer told a York officer he would try to reach a criminal lawyer for Mr. Vaive,Mr. Barry said.

The officer did not suspend the impaired driving investigation while that criminal lawyer was being contacted and, instead, began obtaining breath samples from Mr. Vaive, Mr. Barry said.

That was a “shortcut” that violated Mr. Vaive’s right to get proper legal advice, Mr. Barry said.

Thus, the breath samples, which reportedly showed Mr. Vaive’s blood-alcohol level to be nearly double the legal limit, should be excluded and he should be found not guilty, Mr. Barry said.

However, Mr. Fuller took aim at Mr. Barry’s reasoning, arguing that based on a York officer’s testimony, Mr. Vaive never expressed discontent with the legal advice he received.

And Canadian high courts have ruled police are not required to maintain the quality of legal advice received by an accused person once contact with a lawyer is made, Mr. Fuller added.

Besides, Mr. Vaive testified he was aware of the existence of duty counsel but did not want to use that free legal service, he noted.

That was his choice — not a breach of his rights, Mr. Fuller said.

York Regional Police received a call about a suspected impaired driver in the Pine Valley Drive and Hwy. 7 area in Vaughan, July 14, 2009 after a man was spotted getting into a vehicle at a plaza.

The caller saw the vehicle head south on Pine Valley, then west on Hwy. 407, police said.

As the vehicle exited at Hwy. 427, York police stopped it, investigated Mr. Vaive and arrested him.

Mr. Vaive had was returning from a golf game in Gravenhurst.

Fernando Bernardo, who phoned police that day, testified in February he made the call after seeing a man struggling to stand in a parking lot.

When Mr. Bernardo spotted the man in the lot, he thought he may be ill, court heard. But when the man leaned against a pickup truck before climbing behind the wheel, it was clear he wasn’t sick, he testified.

[coyo]

After that additional info, I'd say Rob's theory that Vaive had a fan in the judge may be very accurate.

[Rob MacLennan]

After that additional info, I'd say Rob's theory that Vaive had a fan in the judge may be very accurate.

The judge's decision cites the many people who spoke to his character, the "high level" of hockey at which he competed, and his many philanthropic efforts, none of which preclude the possibility that he was rip-roaring drunk on that day. In fact given the almost legendary drunks in the NHL, one might ask such a player to prove that he WASN'T a drunk.

[BusaBob]

The judge's decision cites the many people who spoke to his character, the "high level" of hockey at which he competed, and his many philanthropic efforts, none of which preclude the possibility that he was rip-roaring drunk on that day. In fact given the almost legendary drunks in the NHL, one might ask such a player to prove that he WASN'T a drunk.

so again, in light of this information, it begs the question: how was it that he got off?

@ coyo: but what is the rationale for the 2 hour cut off?

I can understand how if the measurement was below .08 at the 2 or 3 hour mark after the stop, then it would be questionable whether the BAC was ever over .08

but can't one reasonably conclude that if a person had a BAC of over .08 at 2 or 3 hours after the stop, they were likely over that level at the moment they were stopped (if a couple hours had gone by since the last consumed drink)?

[coyo]

I know it doesn't make sense and I THINK it comes down to the fact that it's a scientific process that results in the evidence to charge and in that while some officers are qualified to operate the instrument and read the results, they aren't scientists therefore the 2 hour presumption is more to negate having to have a scientist review EVERY case prior to trial.

so again, in light of this information, it begs the question: how was it that he got off?

@ coyo: but what is the rationale for the 2 hour cut off?

I can understand how if the measurement was below .08 at the 2 or 3 hour mark after the stop, then it would be questionable whether the BAC was ever over .08

but can't one reasonably conclude that if a person had a BAC of over .08 at 2 or 3 hours after the stop, they were likely over that level at the moment they were stopped (if a couple hours had gone by since the last consumed drink)?

[Rob MacLennan]

I know it doesn't make sense and I THINK it comes down to the fact that it's a scientific process that results in the evidence to charge and in that while some officers are qualified to operate the instrument and read the results, they aren't scientists therefore the 2 hour presumption is more to negate having to have a scientist review EVERY case prior to trial.

I'm thinking that the three hour limit, as stated in the current Criminal Code, was previously a two hour limit. I base this assumption on the contents of this judgment, where 254 (3) is quoted. It also states the rationale for the limit and states a couple of interpretations.

http://scc.lexum.org/en/1992/1992scr...2scr2-663.html

[Poser]

march 3rd 2012.

http://www.ctvbc.ctv.ca/servlet/an/l...shColumbiaHome

Liquor industry funding drunk driving appeals

The B.C. liquor industry is partly funding the legal appeals of some suspected drunk drivers who are trying to get their licences back, CTV News has learned.
Last November, a B.C. Supreme Court judge ruled that the immediate 90-day driving bans issued under the province's tough new impaired driving bans were unconstitutional. The ruling was the result of a challenge from drivers who said their Charter rights were violated when their licences were taken away.
The Alliance of Beverage Licensees of B.C. backed that challenge, and is now helping to pay the legal fees of some accused drunk drivers who lost their licences under the impugned law and are petitioning to get them back.
"It has offended individuals' Charter rights, and so we're before the courts supporting some individuals who have been charged," the alliance's Matt MacNeil told CTV News.
"This is not about the right to drink and drive. This really is about people's individual rights."
B.C.'s bar and pub industry has complained about the new law since it came into effect in September 2010, arguing that it has gutted their business.
"In rural B.C., it's absolutely been devastating. The response we get from members is anywhere from 30 to 50 per cent their sales are down," MacNeil said.
He added that the way the government presented the strict law to the public gave people mistaken ideas.
"We're concerned about the perception that you can't come and have a glass of wine at the end of your business day," he said.
But families of drunk-driving victims see the industry's involvement in the court challenges in a different light.
Markita Kaulius, whose 22-year-old daughter Kassandra was killed by a suspected drunk driver last year, said she's appalled.
"I'm saddened, I'm angry. To me, that's such a conflict of interest," Kaulius said.
The industry's legal endeavours aren't finished yet, though. The alliance is also challenging penalties for drivers who refuse to submit to breathalyzer tests and plans to go after the consequences for drivers who blow in the "warning" range.
"We think it should go back to the way the law was in the past," MacNeil said.
The government will be introducing new legislation this spring that it says will give drivers more of chance to challenge breathalyzer results.

[invictus43]

I mean, the guy's dead guilty..how he wrangled getting off is just trial nonsense. I hope he feels good about himself.

[OpenGambit]

I have no rationale legal explaination, therefore I will just leave well enough alone...

[coyo]

I didn't read the article but can definitively state the both 2 and 3 hour limits exist.

I'm thinking that the three hour limit, as stated in the current Criminal Code, was previously a two hour limit. I base this assumption on the contents of this judgment, where 254 (3) is quoted. It also states the rationale for the limit and states a couple of interpretations.

http://scc.lexum.org/en/1992/1992scr...2scr2-663.html

[Rob MacLennan]

I didn't read the article but can definitively state the both 2 and 3 hour limits exist.

You should read the article then because where the current Criminal Code quote states three hours, the Supreme Court judgment states 2 hours for the exact same quoted section. If Vaive was charged when the Code said 2 hours, it would still be applicable in his case.

[Pegassus]

Can we use this case somehow for our advantage? Doesn't this set a precedent that so many judges love to follow?

"Not guilty you honor, I did not blow the thing until I arrived to the police station"

[invictus43]

Well..I suppose if you're on the way down..you can try to delay as long as possible to hope your number goes lower..I think you can deny the breathalyzer and go straight for the blood test..but that would probably take some time to administer..so you might have better luck there as well.

[coyo]

I'll read it tonight, but the 2 timings exist and haven't changed for years.

You should read the article then because where the current Criminal Code quote states three hours, the Supreme Court judgment states 2 hours for the exact same quoted section. If Vaive was charged when the Code said 2 hours, it would still be applicable in his case.

[coyo]

You cannot opt for blood, only the arresting officer can decide to go by way of a blood demand and only for reasons such as injury, pain, etc...

Well..I suppose if you're on the way down..you can try to delay as long as possible to hope your number goes lower..I think you can deny the breathalyzer and go straight for the blood test..but that would probably take some time to administer..so you might have better luck there as well.

[Rob MacLennan]

Well..I suppose if you're on the way down..you can try to delay as long as possible to hope your number goes lower..I think you can deny the breathalyzer and go straight for the blood test..but that would probably take some time to administer..so you might have better luck there as well.

If you refuse the breathalyzer, then they can hit you with charges every bit as bad as impaired operation on the spot. The only reason why out of that would be if you had a respiratory condition, that made it impossible for them to get a good sample. If you faked that then you can be damned sure, that they would do everything they could to nail you.

[OpenGambit]

Well..I suppose if you're on the way down..you can try to delay as long as possible to hope your number goes lower..I think you can deny the breathalyzer and go straight for the blood test..but that would probably take some time to administer..so you might have better luck there as well.

as stated already, refusing the breathalyzer is in itself a crime.

[invictus43]

as stated already, refusing the breathalyzer is in itself a crime.

Apologies..I am incorrect. I thought you could opt for a blood test rather than breathalyzer. I wasn't advocating foregoing any test at all..which is obviously presumed guilt.

[coyo]

You should read the article then because where the current Criminal Code quote states three hours, the Supreme Court judgment states 2 hours for the exact same quoted section. If Vaive was charged when the Code said 2 hours, it would still be applicable in his case.

I read it. The article speaks to both the time limit to make the demand AND the time allowed for the presumption in law as to the admissibility of the test results. In the article BOTH are 2 hours but the article is from 1992. I can't say when the time limit to make a breath demand was changed but can say that it is now 3 hours for the demand, but still 2 for the presumption.