The Night a Lawyer Was Illegally Arrested

Can you imagine being arrested for no reason and placed in handcuffs? “Impossible,” you might say, or “Unlikely at best.”  I, as a former Assistant Crown Attorney and defence lawyer thought it would never happen to me. It turns out I was sadly mistaken. If it could happen to me, imagine what could happen to someone unfamiliar with the legal system.

Here is my story.

I’m at a golf event with business people at a private course. Good times are being had by all. Tonight, I’m the designated driver and the group wants to go out for drinks in downtown London, Ontario.  I shuttle everyone downtown in my SUV.  I have no concerns about the police or drinking and driving because I am STONE COLD SOBER, the proverbial babysitter who drinks club soda all night and keeps people out of trouble.

All is going as planned. I drop the last of the VIPs off at the hotel and made my way home along Oxford, driving the speed limit and thinking about my trial scheduled in the morning.  It’s 2:30 am.

I see a police van pull in behind me. It follows for 10 seconds and the lights come on.  ‘No problem,’ I think, quick chat and I will be on my way.  I haven’t been speeding- no headlights out, validation sticker is up to date and I’m stone-cold sober.

To make things go faster, I roll down my window and begin to reach into the glove box to get my insurance and registration.  The officer at my window barks at me.

“Stop that and show me your driver’s license.”

I’m driving my quite new Black Suburban with a Veterans License Plate and therefore a bit shocked by the hostility of the officer. I figure he must be having a long night.  I ask the officer why he’s pulled me over?  This question interests me because I am familiar with the law regarding arbitrary detention and what constitutes proper policing.

“Because you were all over the road,” he replies.

At this point, I can’t hide my incredulity.  I tell him there is no way I was all over the road. I was driving the speed limit and very safely. Before I could say another word he responds…

“Get out of the car sir. You are under arrest for impaired operation of a motor vehicle.”

There has been no question about alcohol consumption. No discussion. No roadside breath demand (as is required by law in such a circumstance).

Within 10 seconds of being pulled over, I am out of my truck and handcuffed for drinking and driving….. and I’m sober.

I could bore you with the legal details surrounding what gives a police officer the right to take a citizen out of their car and place them in handcuffs before taking them to a cage to force them to provide a sample of their breath into a machine. But suffice to say this fact scenario is far from what should happen. In fact, it was an illegal arrest.

So, there I am in my nice suit, riding the back of a cruiser in handcuffs. I first ask the officer not to have my truck towed because I am going to go to the station, blow a 0% alcohol content and need my vehicle. He says too bad. More on that later.

Then I ask why I am in handcuffs. I have cooperated, have no record, am an attorney and they really hurt.

“They are on for your safety and for mine,” he responds.

As luck has it, I don’t allow my anger to take hold of me. I realize that this is a tremendous learning opportunity. I am experiencing the trauma people feel when unjustly arrested. This is my chance to better understand the dynamics at play and how some of my clients feel. Many of them had told me no one believed them when they said they were arrested without cause. I vow never to take my clients’ stories for granted again. In fact, I am more than ever driven to continue to balance the scales for those who fall victim to a system that can be unaccountable.

I arrive in the cell block and am processed like a criminal. The officers all recognize me from my time as a prosecutor and defence lawyer. They are looking at the young cop who arrested me like ‘what are you doing? This guy looks completely sober.’

There is a video that captures the intake and I am cognizant that I am standing straight, and articulating my words perfectly, perhaps showing some disdain for being placed in this situation but knowing the breath machine is my absolver. At one point I say, “Can I just take this test? I need to get some sleep for my trial tomorrow.”

Here is perhaps the most disturbing part of the story. Once you are placed in a cell, a breath technician prepares the Intoxilyzer to take the breath samples. When it is ready you are escorted into the test room. The officer qualified to operate the machine must hear from the arresting officer the grounds for your arrest (essentially the legal authorization for placing a citizen into handcuffs and taking them to the station). All events in this room are on video in case somebody wants to fight the charges.

As I am seated on the chair beside the breath technician, the young arresting officer comes in. The breath technician asks him to provide the grounds for the arrest. I look at him. He opens his duty book and reads the following:

  • I received a call that a black SUV in the area had an impaired driver
  • I saw the accused vehicle and watched it swerve in its own lane-way twice without crossing the lines (WTF?);
  • I pulled over the accused and immediately detected a strong odour of an alcoholic beverage (lie- I had not been drinking)
  • The accused fumbled with his documents (absolute lie); and the pièce de résistance
  • The accused was slurring his speech!!

At this point I can’t hold it in any longer. I look at him with death in my eyes and say, “You do realize this is on tape and you just fabricated your grounds for arrest. I have been on video since I got here. I’m ENUNCIATING every word perfectly, the breath technician sitting right beside me cannot smell the slightest whiff of alcohol.” I go on to call him “a disgrace” and lower my head in disbelief that an officer would be so bold, but in reality, for years clients had told me the same thing, I believed them to a degree, but never did I really know what they were talking about until that very sad moment,

I provide a sample into the machine and am escorted back to the cell to wait the mandatory 15 minutes before they take the second sample needed to prosecute a charge for Over 80.

Ten minutes later a police cadet comes by and says, “Come with me”. He leads me past them breath test room to the Cell Sergeant and tells me I am being released. No explanation other than the embarrassed looks of the officers who cannot hold my stare. One of the officers walks past me and whispers, “Your reading was zero.” My arresting officer has disappeared.

It’s 4 am. My wallet is in the car. The police call me a cab. It costs me $65 to get home and wake up my wife to pay the cab. I’m up an hour later to get a ride to the impound lot. Do you think I could get my truck out for free after all the indignities of the evening? No chance. It’s $320 to release the truck.

So there I am…driving to a drinking and driving trial on one hour of sleep, $400 poorer, with sore wrists from the cuffs and a bruised ego. But I come out of the situation emboldened and wiser, more capable and more passionate about defending those who experience injustice when no one else wants to listen to them. I’m feeling very good about what I do.

As an aside, my client that day following my illegal arrest was acquitted on his charge. The reason? The officer’s grounds for arrest were found lacking. I am sure he was wondering what he did to deserve my ferocity with him on the stand. I was too tired to tell him the story them, but if he reads this now, maybe he’ll understand.

By Phillip Millar

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