Criminal Law – Driving over .08 – Blood Sample – Seized from Hospital
Criminal Law – Impaired Driving
The accused was the driver of a vehicle involved in a rollover on a grid road in a rural area. When the officer arrived on scene, the accused was outside the vehicle being tended to by EMTs. At the hospital, the officer made a breath demand. The officer made a blood demand after she was advised that the accused would be transported to Saskatoon by ambulance and could not provide a breath sample. However, the Crown chose not to rely on the blood samples taken pursuant to the blood demand because the officer had violated the accused’s right to counsel. Instead, the Crown chose to rely on BAC readings obtained from two blood samples taken by hospital staff for medical purposes and obtained via a search warrant. The accused argued that the hospital samples should also be excluded because of the violation of her right to counsel.
HELD: The hospital blood samples were admitted as evidence. There was no evidence that hospital staff were acting as agents of the state when the blood samples were taken from the accused. The mere fact that physicians participate in emergency treatment of an accused does not render them agents of the government for the purposes of the Charter. The officer did not ask the hospital to take any samples other than the two samples that were required for the blood kit. The officer believed that the two samples in question were taken by the hospital for medical purposes. There was no evidence that the constable had anything to do with the two hospital samples after the blood was drawn. There was no evidence that the police tracked the samples or that she intended to seize them later as a matter of common police practice. The accused’s right to counsel does not extend to the blood samples taken for hospital purposes and seized as a result of a valid search warrant. The blood samples and Certificate of Analysis stating that the accused’s blood alcohol content at the time of driving was between 227 and 242 milligrams of alcohol in 100 millilitres of blood is admissible and the accused is guilty of the .08 offence. The accused was also found guilty of impaired driving on the basis of the report from the RCMP lab which stated that a person with the blood alcohol level the accused had at the time of driving would have their ability to drive impaired by alcohol, but a conditional stay was entered on the impaired driving count.