Man acquitted after breath-test evidence ruled inadmissible

A man who drove through a red light and a fence into a farmer’s field was acquitted on Monday of driving with more than the legal limit of alcohol in his system because of a charter rights violation.

Robert Schneider was charged with driving with a blood alcohol concentration over 0.08 and impaired driving. After a trial in which two witnesses and the investigating officer testified, Schneider was only convicted of the impaired driving charge.

Judge Patrick Sullivan found that the investigating officer infringed on Schneider’s charter rights, which resulted in breath test evidence being deemed inadmissible.

Sullivan said the two witnesses testified they were test driving a vehicle from a local dealership on May 15, 2024, when they saw Schneider driving his truck near the intersection of Highway 110 and Highway 10.

They testified that Schneider drove through the intersection “without slowing at all or stopping for the red light and then continuing off the road through a ditch into a fence and ultimately coming to a stop 50 metres into a farmer’s field.”

One of the witnesses called 911, and emergency medical services and police showed up shortly after.

The investigating officer found Schneider in the driver’s seat. He testified that he was bleeding from the nose, seemed drowsy and was slurring his words, but said he didn’t smell an odour of alcohol.

An ambulance then transported Schneider to the hospital.

Sullivan said the officer testified that while he was still at the scene, one of the paramedics said Schneider was “drunk.” Up until this point, the officer said he hadn’t considered the accident to be a result of any criminal wrongdoing.

“The comment or opinion of the unnamed paramedic … has no evidentiary value relating to the proof of impairment, but it does inform (his) next steps in this investigation,” Sullivan said.

The officer testified that he followed the ambulance since he was still investigating the collision and had more questions. While in the emergency waiting room, the officer listened to Schneider’s conversation with the admitting nurse and observed his behaviour.

He testified that Schneider dropped his wallet and it took him three tries to successfully pick it up. He also said he saw him swaying side to side in his chair and heard him slurring his words while speaking with the nurse.

When he got closer, he said he could smell an odour of alcohol.

Once admission was complete, Sullivan said Schneider was moved to a private waiting room. Sullivan said the officer couldn’t remember or explain how he and Schneider ended up in the room together, despite him testifying that police often used this room to give the clients they speak with privacy.

Defence lawyer Mark Wasyliw argued that the officer directed him to the room so he could watch him walk.

Sullivan said that while the officer’s testimony was credible and reliable, he found it unlikely that he couldn’t remember how they ended up in the room together and believed that he did direct him.

“He testified that he did not tell Mr. Schneider, upon entering the private waiting room, or at any earlier point in their investigation, that he was actively engaged in an impaired driving investigation,” Sullivan said.

Once they were in the private room, the officer testified that Schneider made comments about his drinking history and said he drank the night before. He said he didn’t remember if he asked him a question to provoke Schneider to share this information.

Wasyliw said Schneider wouldn’t have blurted that out unprompted.

“It was in the private room that (his) suspicion of Mr. Schneider’s impairment crystallized,” Sullivan said.

The officer then made an approved screening device demand. The initial ASD demand was made at 12:25 p.m. and he made the formal arrest and breath demand at 12:32 p.m.

“It was at this time, after having been moved into the private room, after having spoken to Mr. Schneider and observed him further, and after the failed reading on the ASD that (he) advised Mr. Schneider of his section 10 B rights to counsel.”

Schneider was transported to BPS, where he provided more information about his drinking the night before and two more breath tests, which both exceeded the legal limit.

Defence argued that since his charter rights were breached, the breath tests should be excluded from evidence.

Sullivan said he believed Schneider was “psychologically detained” when the officer directed him into the private waiting room where he was questioned. He said his rights to council were violated since it was only provided after a failed breath test.

Section 10 (b) of the Canadian Charter of Rights and Freedoms states that an individual has the right to legal advice when they are under arrest or in detention.

Because his charter rights were violated in the process of obtaining the breath test, Sullivan said that evidence would be excluded.

Without the evidence of the breath test, he said he needed to consider whether the Crown had established proof beyond reasonable doubt that Schneider was impaired.

Because of the circumstances around the collision, as well as Schneider’s observed behaviour in the public waiting room, Sullivan said he believed this was evidence of Schneider’s impairment and convicted him of driving impaired.

» sanderson@brandonsun.com