A woman has been cleared of a charge of drunk driving because her breasts were exposed during a strip search, an Ontario judge ruled last week.
Two male police officers pulled over Krystina D'Andrade on Dec. 7, 2014 after noticing she was swerving in her lane. Since the two officers did not have a breathalyzer, a female police officer brought one to the scene, according to court documents.
D'Andrade provided a breath sample which showed a blood alcohol level of 161 and 166 milligrams in 100 millilitres of blood. Officers then charged her with driving with a level above the legal limit of 80 milligrams.
The female officer conducted a pat-down search, during which she unzipped D'Andrade's sweater. The woman was wearing a see-through bra, and her breasts were exposed.
D'Andrade claimed the other two officers saw everything, which they denied.
According to court documents, the officer said she assumed D'Andrade would've been wearing a shirt underneath her sweater but didn't ask, which Judge J.W. Bovard said was "careless."
Bovard added the officer also did not ask for permission to unzip her sweater, or warn her that she would do so.
Given that D'Andrade was wearing tight, form-fitting clothes at the time, the judge ruled a pat-down search would have sufficed to determine whether she was carrying any weapons — making a strip search unreasonable.
Unzipping her sweater and exposing her breasts was a violation of her Charter rights, Bovard wrote.
The judge also ruled since D'Andrade was a small woman travelling alone, it was unlikely she would pose a significant threat to three police officers.
He admitted the breathalyzer test was reliable enough evidence to convict D'Andrade of drunk driving, but said the violation of her Charter rights "was so significant that to admit the evidence would bring the administration of justice into disrepute."Under Section 24(2) of the Charter of Rights and Freedoms, if evidence is obtained in a way that infringes a person's rights, that evidence may be excluded.