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International Law: Criminal Review
R. v. Ogertschnig
Just because it seems to be such a popular topic, here’s a (rare) example of a court upholding an accused’s refusal to blow.
Obviously each case must be looked at in the context of its own circumstances. In this case, the circumstances including the unlawful arrest; the use of handcuffs which were too tight; the police officer?s refusal to address the accused?s complaint concerning the tightness of the handcuffs; and the overall impact on the accused, led him to demand the right to speak to a lawyer and to refuse to provide a breath sample. In the circumstances, the police officer?s treatment of the accused was unlawful, unjustified, disrespectful, and humiliating. It caused some psychological distress and confusion, as well as some slight physical injury through an overly tight left handcuff bracelet. It is my view that the accused had a reasonable excuse for refusing to provide the breath sample. Just as an accused may respond to an unlawful arrest by resisting, so too do I believe an accused may respond to an unlawful arrest, as shown in these circumstances, by refusing to provide breath sample.
Mr. Ogertschnig was lucky he had an independent witness to back him up. Otherwise, yes, the police do get away with stuff like this. Not all the time, but it happens.