R v DiPietro

R. v. DiPietro

District Court of Ontario
District Court of Ontario — Judge H.R. Locke, D.C.J. | January 20, 1989

Background

Gaetano DiPietro was caught driving 88 km/h in a 60 km/h zone. The arresting officer smelled alcohol on his breath, which led to a roadside breath test that registered a "fail" just before 1:06 a.m. DiPietro was then taken to the police station for breathalyzer tests at 1:55 a.m. and 2:15 a.m., both showing 100 milligrams of alcohol per 100 milliliters of blood.

The officer completed a Notice of Suspension of Driver's Licence, writing that DiPietro's 12-hour suspension was for "obtaining a reading of 50 milligrams or more on a breathalyzer (Borkenstein)." During cross-examination, when asked when he completed this document, the officer testified: "I don't know when completed. I presume it would be completed sometime after the breathalyzer (sic) test." After both sides had closed their cases and given their arguments, the Crown asked to reopen the trial to call the officer back to clarify the Notice of Suspension.

Issues

1. Whether the Provincial Judge erred in allowing the Crown to reopen the prosecution after the accused had pleaded not guilty, all Crown evidence had been presented, the accused had elected to call no evidence, and submissions had been substantially completed
2. Whether the Notice of Suspension constituted evidence to the contrary regarding the breathalyzer readings

The Reopening Decision

The District Court judge was highly critical of the Provincial Judge's decision to allow the Crown to reopen its case. Judge Locke found the lower court's reasoning "quite confusing" and emphasized that "The Crown is surely entitled to only 'one bite' and not two." The Crown counsel at trial was described as "experienced and capable" and "well aware" that the Notice of Suspension had become an exhibit, but chose not to re-examine the officer on its contents during the Crown's case.

The court held that once the accused has elected to call no evidence and argument has been given, the trial should not be reopened in these circumstances. This violates fundamental principles of trial fairness and finality.

Evidence to the Contrary

Judge Locke found that the Notice of Suspension, which referred to a reading of "50 milligrams or more" rather than the actual breathalyzer reading of 100 milligrams, was capable of being evidence to the contrary. In the absence of the actual document showing what the roadside reading was, this discrepancy between the officer's written notation and the breathalyzer results could undermine the prosecution's case.

Key Takeaway

The Crown cannot get a "do-over" to fix problems with their case after closing arguments have begun.

If you're defending a drinking and driving case, pay close attention to any documents the officer completed — discrepancies between different readings or times can create evidence to the contrary that helps your defence.