Facts: At midnight in a town in Northern BC a police officer witnessed FR driving a Jaguar and drifting within his lane of travel and then make a wide turn right. FR, in his 70s, was pulled over and when approached, argued with the officer about the grounds for his stop. The officer smelled an odour of alcohol on FR’s breath and glassy eyes, but observed no other symptoms of impairment. The officer said that FR admitted to him that he had consumed “3 drinks of the course of the night”. The officer demanded breath samples and two different BAC results from two different ASD units produced FAIL readings. FR was given an Notice of Driving Prohibition –IRP by the officer and he appealed same. FR provided a statement that he suffers from G.E.R.D. (gastro esophageal reflux disease) and other medical conditions and that he had only had 2 and not 3 ciders during the night. FR’s medical doctor confirmed that FR suffered from GERD and that he had provided him a new medication (for other medical issues) that had side effects of dyspepsia (ie. regurgitation). The drinking pattern of FR was confirmed by others who were drinking with him at the bar. An expert report from Nizar Shajani, forensic toxicologist was submitted showing that FR’s likely BAC would have been within the legal limit but that the effects of the GERD (regurgitation of alcohol from the stomach) could lead to FALSE FAIL results on the ASDs used. Decision: “Having considered the evidence before me, I am NOT satisfied that the ASD registered a “FAIL” as a result of your BAC exceeding 80 mg%.” Driving prohibition revoked, no fines imposed, towing an storage fees paid by the SMV. (September 2013).
