R. v. Walsh (C.W.), (1988) 77 Nfld. & P.E.I.R. 266 (NFPC)

• Judge: Woodrow, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: December 09, 1988
• Jurisdiction: Newfoundland and Labrador
• Citations: (1988), 77 Nfld. & P.E.I.R. 266 (NFPC)

R. v. Walsh (C.W.) (1988), 77 Nfld. & P.E.I.R. 266 (NFPC);

    240 A.P.R. 266

MLB headnote and full text

Her Majesty the Queen v. Carl William Walsh

Indexed As: R. v. Walsh (C.W.)

Newfoundland Provincial Court

Woodrow, P.C.J.

December 9, 1988.

Summary:

An accused was charged with failing to provide an A.L.E.R.T. breath sample. The accused failed three attempts, was given a demonstration, then failed again. The officer refused to allow the accused to make a fifth attempt. The whole incident occupied only eleven minutes and there was no evidence that the accused was merely pretending to provide the sample. The accused submitted that he should have been given a second chance to provide a sample following the demonstration.

The Newfoundland Provincial Court dismissed the charge.

Criminal Law - Topic 1386.3

Motor vehicles - Impaired driving - Roadside screening test - Refusal - An accused was charged with failing to provide an A.L.E.R.T. breath sample - A demonstration of how to give a sample was only given after the accused failed three attempts - The accused failed on the fourth attempt and he was refused a fifth - No evidence that the accused was uncooperative or merely pretending to provide the sample - The Newfoundland Provincial Court dismissed the charge - The court held that the accused should have been allowed another attempt to provide a sample - See paragraph 11.

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 237, sect. 238, sect. 239 [para. 1].

Counsel:

Brad Wicks, for the Crown;

R. Simmonds, for the defence.

This case was heard by Woodrow, P.C.J., of the Newfoundland Provincial Court, who delivered the following judgment on December 9, 1988.