EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Tuesday, March 4, 2008

From Music Critics' Whipping Boy To Judge's Whipping Boy: Nickelback's Chad Kroeger's Motion To Strike Breathalyzer Results Denied By Canadian Judge

There's a lot of interesting celebrity DUI news floating around the internet recently.  Yesterday saw the season premiere of TLC's "Little People, Big World," which is showing what happened during Matt Roloff's DUII trial.  I previously posted about the trial in entries on January 9th and January 11th.

Now, the frontman of music critics' favorite whipping boy, Nickelback, has set an interesting evidentiary precedent in Canada.  Lead singer Chad Kroeger (real name Chad Robert Turton) was stopped for speeding on June 22, 2006 in his Lamborghini in Canada.  The officer who pulled him over then asked him to blow in his face so that he could see if he detected alcohol on his breath.  After detecting alcohol, the officer gave Kroeger a breahthalyzer test, which indicated that his BAC was .14, well over the legal limit of .08.  The problem with this chain of events, however, is that the B.C. Supreme Court has determined that under the Canadian Charter of Rights and Freedoms, the "blowing in the face practice [is] unconstitutional." 

Kroeger thus asked that the judge hearing his case deem the breathalyzer results inadmissible because the blowing in the face practice is unconstitutional, and the officer only gave Kroeger the breahthalyzer test after using this improper practice, making the test results inadmissible as what we would call in the United States the fruit of the poisonous tree.  However, while the judge found that the officer used an improper practice, he still found the breathalyzer results admissible, concluding that the "admission of evidence obtained by a police action which violates a person's rights under the Charter, but which intrudes upon a person's body in only a minimal fashion and is not a significant intrusion, will not affect the fairness of the trial."

Prosecutor Michelle Wray has noted that the judge's decision on the "blowing in the face"' evidence is precedent setting and could be grounds for an appeal if Kroeger is convicted.  Meanwhile, defense counsel Marvin Stern noted, "It's a unique decision and so it certainly could be grounds for appeal."  He contended, "Conscriptive evidence was found to be a breach [of the Charter] and the judge included the conscriptive evidence anyway. Yes, I think it is fair to say that it's contrary to the law in British Columbia up until this time."

I don't have much familiarity with Canadian law, but the judge's decision seems to take the teeth out of the proscription.  If evidence obtained after use of the blowing in the face practice is admissible despite the practice being unconstitutional, what is the point of holding the practice unconstitutional?  It wouldn't deter police behavior, and it wouldn't protect drivers who were subjected to the practice.  Meanwhile, I have found no U.S. cases where this blowing in the face practice has been discussed.

-CM 

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