New York Jets linebacker Jamaal Westerman has been acquitted of refusing to give a breath sample after a Brampton judge said he could not determine he deliberately flubbed the test.
The 26-year-old New Jersey man testified he tried to provide a sample but was unsuccessful, and was unable to explain why, noted provincial court Justice Bruce Duncan.
“He did not claim to have any health issues,” Duncan said, in his recent written decision. “There is no explanation as to why he could not provide a sample. From his occupation it can be assumed that he was in excellent condition, with superior lung capacity.”
But the judge found that forcing the 6-foot-3 inch, 255 pound linebacker to prove he was not deliberately flubbing the task would be unjust and a breach of his Charter-protected presumption of innocence.
The judge said he had a reasonable doubt as to whether his failure was “wilful or intentional.”
“He presented as credible on the witness stand. There was no indication that he was impaired or evidence that he had had more than the one drink.”
Westerman played high school football at Brampton’s Notre Dame Secondary School, from which he graduated, after spending his childhood in Florida. He signed with the Jets in 2009.
He was driving his mother’s car in Brampton at 3:56 a.m. on May 30, 2010, when a police officer stopped him for speeding, something he denies doing.
He was headed for his mother’s home in that city from downtown Toronto. His wife and a friend were in the car.
The officer smelled alcohol and demanded a breath sample.
He accidentally dropped the breathalyzer mouthpiece on the ground. A second mouthpiece was summoned, and arrived eight minutes later.
When he blew, the officer described Westerman as giving short pulsing breaths rather than the continuous flow required.
He was not read his rights to counsel or given a chance to call one, something his lawyer Patrick Ducharme argued he should have been allowed to do because of the delays by the roadside.
Normally being given the right to counsel is not required before a breathalyzer, because there is so little time.
“He argues that the defendant had a cellphone and is an NFL player who had immediate access to a posse of lawyers,” the judge wrote. “In essence, counsel argues that the defendant is a big shot” with more access to legal advice than others.
The judge ruled that, regardless, there was still no opportunity to consult a lawyer.
But in an interview, Ducharme said he argued the opposite: that his client never said a word about his status as a pro athlete.
“But the reality is that he had the ability, because of his position in life, to call lawyers who were on staff for him who could reach a lawyer in this jurisdiction and get him advice, and there was plenty of time to do that,” Ducharme said.