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The client was pulled over in the early morning hours in Kelowna .  The police observed an open can of beer in the centre console and detected an odour of alcohol on the client’s breath.  A roadside breath demand was made and the client blew a fail.  After that he was taken to the police station and provided samples of his breath that were over twice the legal limit.  Also, it was discovered that the client was prohibited from driving under the Motor Vehicle Act.  At trial Mr. van der Walle argued that his client’s Charter rights had been violated by the police during the seizure of the client’s breath samples.  Unfortunately, while the judge agreed that the client’s rights had been violated, she declined to exclude the breath sample evidence from the trial on that basis.  Thankfully, however, she did agree with Mr. van der Walle that the Crown had failed to prove that the first sample of the client’s breath at the  police station had been taken within two hours of driving, a condition precedent to the admissibility of the breath sample evidence.  As a result, the trial judge dismissed the “over .08” charge.  She also dismissed the impaired driving and driving while prohibited charges, for different reasons.  In the end the client was acquitted of all charges.  He did not testify .  

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