OHTA s48

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Joined: Mon Jul 27, 2015 12:51 pm

OHTA s48

by: unguided on
Mon Jul 27, 2015 1:42 pm

Hi There. After a look around this forum it is clear that criminal code subjects are avoided. My question deals largely with OHTA Section 48(6) and 48(6.1) and so is hopefully an exception.

Recently at a RIDE Check I was subject of a roadside screening, where I blew a fail. Upon being told of the fail by the officer, I immediately asked "can I blow again". The officer agreed, and let me blow again using a fresh spit trap but the same screening device. I again blew a fail, a demand was made under c.c. 254(2), and the result was a charge of over 80. cc 253(1)(b).

Because the officer was in clear violation of HTA 48(6.1), I submit that he did not have authorty to make a breath demand under 254(2), and that evidence obtained by that demand is inadmissible.

My question: Does the above reasoning represent a valid interpretation and application of HTA 48(6.1)?

Thanks to all who can offer some suggestions here.
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by: Decatur on
Mon Jul 27, 2015 2:40 pm

You didn't blow an alert of a warn on the device. You blew a fail.
They didn't have to even give you the second chance.
That section of the HTA deals with the three day administrative suspension which you wouldn't have had an opportunity to get as a result of the fail.

It's purpose is to allow anyone who may be subject to the three day suspension to have a second reading done. If they pass, they are ok. However if they then fail on the second test, they have to live with that result.
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