March 14, 2013
BY: NICOLA MACLEOD
New Brunswick Provincial court will decide whether or not a Fredericton man’s rights were violated during a roadside breathalyzer test.
Justin Marshall MacKenzie was charged with drunk driving when he was pulled over July 17 after a witness notified police of a swerving car heading down Regent St.
Constable Patrick Small of the Fredericton Police was called as a Crown witness during Tuesday’s trial. He explained how he caught up with Mackenzie on the Westmoreland St. Bridge and he pulled him over when he saw the vehicle jerking on an exit ramp.
Small told the court he spoke with MacKenzie and detected an odor of alcohol from the car. He determined a breathalyzer test was necessary.
Small explained that his breathalyzer device was malfunctioning and he called another officer to bring him a new device. The device arrived in four minutes.
During the four minutes, MacKenzie was kept in the back of Small’s police cruiser. Small told the court that Mackenzie could not leave the cruiser, as the door handles are only accessible from the outside.
Small said that MacKenzie failed the breathalyzer test. He was taken to the police station where it was determined that the concentration of alcohol in his system was over the legal limit.
Constable Small’s notes were admitted as evidence. The notes showed that MacKenzie was not read his rights until after Small demanded a sample, which was not until the second device was delivered.
The Defense argued that Small violated MacKenzie’s right to council. MacKenzie had a cell phone and should have been notified of his right to speak to a lawyer as soon as he was placed in the police cruiser.
They also argued that Small’s decision to pull over MacKenzie was not justified. The Defense says the jerking of the vehicle and the unidentifiable source of smell of alcohol in the vehicle is not enough to reasonably suspect that Mackenzie was drunk.
The Defense explained MacKenzie should not have been obligated to comply with Constable Small. Small was unprepared due to his device malfunction and MacKenzie was not slurring his speech, not stumbling and was balanced when he got out of his vehicle.
They cited several similar cases that were dismissed due to the officer being unprepared to take a sample or a lack of reason to believe the accused was drunk.
The Crown argued that a roadside sample could be taken with delay in reasonable circumstances such as Small’s. Small said the device had been functioning when it was tested earlier that morning.
Judge Mary Jane Richards will give her verdict on April 27.