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Drinking and driving is an all too common occurrence in today's society. It has steadily become one of the most common causes of traffic accidents in the past few years which in turn, has caused the police and highway patrolmen to set up "Ride Program Spot Checks" during the summers, long weekends and holidays on major highways and road ways. When a person is stopped at one of these "spot checks" whether they are drunk or sober, they still have rights. When a person is impaired and causes an accident where they hurt themselves and/or someone else, they are still covered under the Charter of Rights and Freedom and can object to a breathalyzer or can refuse to speak without a lawyer present. But when someone drinks and drives and is responsible for a horrible accident and refuses to have a blood alcohol tests taken, do the doctors and the police have the right to take a sample from that person while the person is in serious medical state or is that a violation of his Rights.

In the case of Wifred Wayne Dersch vs. Her Majesty the Queen, in the Court of Appeal of British Columbia, the accused was charged with Criminal negligence causing death and bodily harm and having the care and control of a motor vehicle while impaired by alcohol or drugs and thereby causing death and bodily harm. The motor vehicle that the accused was in control of crossed the centre line of a highway and collided head-on with a vehicle travelling in the opposite direction. The driver of the other car and three other persons, including Mr. Dersch were injured.

A police officer at the site of the accident could smell alcohol on the accused's breath and noticed that his eyes were bloodshot and glassy. The accused was transported to the hospital as a result of his injuries, and refused to have a blood sample taken under any circumstances. The doctor, with the help of a surgeon obtained a blood sample from the accused when he was unconscious due to medical reasons. One of the vials of the accused's blood was used for a blood alcohol test, even after the accused had refused to allow the officer the right to have a blood sample taken from his arm under any circumstances.

At his trial, the accused was convicted on all four of the counts he was charged with after the trial judge ruled that the results of the blood alcohol test be admissible in court. The Court of Appeal was called upon to decide whether the results of the blood alcohol test of the accused should have been admissible by the trial judge because the sample was taken without the accused's knowledge.

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The sections of the Canadian Charter of Rights and Freedoms that were relied upon were

Section 1 guarantees the rights and freedoms set out in it which is subject to reasonable limits set out by law as can be demonstrated and justified is a democratic society.

Section 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived of those rights except in accordance to fundamental justice.

Section 8 Everyone has the right to be secure against unreasonable search or seizure.

4 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

4 () Where, in proceedings, under section (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into dispute.

In conclusion, although you could say that because the accused had verbally denied the blood alcohol test and the doctors took it tomorrow

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