Facts: At 12:40 am TH was pulled over by the police driving after allegedly speeding, reacting slowly
around corners, taking evasive action by pulling onto a dead end road and performing a U-turn. The officer noted the driver had slurred speech, slow movements, trouble producing driver’s license and a strong odour of liquor on breath. Police officer indicated that he asked TH about his drinking that night and TH replied that he “had a couple rum and cokes and his last one was right before leaving The D” [which is a well known drinking establishment in the area]. Officer read ASD demand and took two breath samples from TH on TWO different ASD devices, the first ASD test was at 12:45 am (5 minutes after TH pulled over)and the second was taken 10 minutes later. Both ASD test produced a FAIL result
(or showed BAC well > 80 mgs %). On the IRP appeal TH and his passengers provided statements indicating that TH was only consuming alcohol very moderately as he was the designated driver. TH’s last sip from his glass of rum and coke at “The D” was presented to be at 12:35 am (5 minutes before being pulled over by the police). An alcohol forensic report (from Nizar Shajani) was produced on the appeal showing that an alcoholic drink taken within 15 minutes of both ASD could result in “mouth alcohol” (residual alcohol left in the mouth for a period after a last drink) producing FALSE FAIL results on an ASD and showing that TH’s actual BAC should have been below 30 mg% given the stated drinking pattern. One of the two breath samples was taken within 10 minutes of the stated last drink of rum and one of the breath samples was taken 20 minutes after the last drink of rum. Decision: The SMV’s adjudicator on the IRP found as follows: “ I am satisfied that your BAC (blood alcohol concentration) was less than 80 mg%”. (The decision implicitly accepts the appellant’s drinking pattern evidence over the police officer’s FAIL readings on the two ASDs). As a result of my findings I revoke your driving prohibition, monetary penalty and vehicle impoundment as required by s. 215.5(4) of the Act.
(February 2014)
