A judge has thrown out a drunk driving case against a man who blew more than twice the legal limit — because a police officer stopped him merely on a hunch.

“The officer ought to have known that a random stop based on a hunch was not constitutional,” Ontario provincial court Justice June Maresca said in her judgment.

“A motorist has a reasonable expectation that his liberty will not be interfered with lightly.”

Acting OPP Sergeant Mark Chalk was on radar patrol on 5th Line, Melancthon Township, north of Orangeville, on the evening of June 1, 2011, when he noticed a truck making a U-turn before reaching the officer’s car.

Chalk then observed the driver, Clark Hawkins, make a left-hand turn “in kind of a slow fashion” and then two other left turns, returning to the spot where he had made the U-turn, Maresca said.

Chalk did not observe any erratic or aberrant driving but stopped Hawkins nonetheless because he found his driving suspicious, the judge said.

The officer approached the truck and asked Hawkins what he was doing, demanding to see his licence, ownership and insurance. He detected a smell of alcohol on Hawkins’ breath and ordered him to take a breathalyzer test.

Hawkins failed that test, so Chalk arrested him for driving “over 80.”

Chalk noticed an open can of beer in the back seat cup holder of the truck, three quarters full and very cold. At this point he suspected Hawkins had consumed alcohol within 15 minutes of the first breath test.

So the officer decided to re-administer the test at the police detachment, where Hawkins provided two samples, reading 181 and 177 milligrams per 100 millilitres of blood. The legal driving limit is 80.

Brian Starkman, Hawkins’ lawyer, said in an interview, that police in Ontario likely have more power than in any other North American jurisdiction to randomly pull over drivers, but it’s not limitless.

Police either have to be acting under the Highway Traffic Act to investigate suspected traffic offences or, if they suspect criminal activity, they can only stop the car on reasonable grounds, he said.

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The officer thought Hawkins’ actions were criminally suspicious, “but that amounted to a hunch,” Starkman said.

Chalk could not be reached for comment.