Facts: At 22:56 hours the police pulled over a vehicles being driven by JS at a rolling police road block. There were 4 occupants in the vehicle, one of whom was JS’s friend, CE. The roadblock was a mere 3 minutes away from CE’s house. According to the police report, JS denied any consumption to the police at the first instance but the police officer noted the “strong” odour of liquor on JS’s breath and well as JS’s flushed appearance bloodshot eyes. JS produced two breath samples and both results read “FAIL”. On the IRP appeal JS indicated in his statement that he had drank beer much earlier in the evening but he went to CE’s house, where all four friends drank a shot of whiskey and then departed for the bar. The police stopped him 3 minutes after the shot of whiskey (22:56 hrs) and they demanded samples of breath into an ASD which JS provided at 22:59 and 21:04 hours respectively. An expert forensic analyst report was provided from Nizar Shajani which showed that the last drink of whiskey could have artificially elevated perfectly legal BAC readings to BAC readings over 100 mg% owing to the effects of “mouth alcohol”. There were other statements provided by the 3 other occupants of the car which supported the fact that each had consumed a shot of whiskey within minutes of the police stop of JS. Decision: The SMV’s adjudicator on the IRP appeal found that the ASD readings were not reliable owing to the fact that they were both taken within 15 minutes of JS’s last drink of alcohol. From the Decision of the adjudicator: “After reviewing all of the evidence before m I am not convinced that the samples of your breath were taken 15 minutes after your last drink”. Driving prohibition revoked, no fines imposed, towing and storage fees paid by the SMV. (July 2013)
