RSBC V. MCB – IRP APPEAL – SUCCESSFUL – MOUTH ALCOHOL DEFENCE — DRIVER STOPPED INITIALLY FOR SPEEDING AND POLICE SEE PARTIALLY CONSUMED BEER CAN IN VEHICLE CONSOLE AND INVESTIGATE FOR IMPAIRED DRIVING – DRIVER BLOWS “FAIL” ON ASD — DRIVER TESTIFIES HE CONSUMED ALCOHOL WHILE DRIVING BEFORE POLICE STOP AND WITHIN 7 MINUTES OF PROVIDING ASD SAMPLE — ADJUDICATOR FINDS ON APPEAL THAT DRIVER’S BLOOD ALCOHOL CONCENTRATION WAS LESS THAN 80 MG % — ASD FAIL CAUSED BY MOUTH ALCOHOL – PROHIBITION REVOKED
Facts: On June 20th at 23:38 hours MCB was stopped by the RCMP for speeding on a major highway in rural BC. Upon approaching the vehicle the officer noted an open beer can in the center console of the vehicle and changed the focus of his investigation to an impaired driving investigation. Officer noted the smell of alcohol on MCB’s breath, red and bloodshot eyes and that MCB exhibited slurred speech. Officer asked MCB when he last consumed alcohol and testified that MCB admitted to having 3 beers that last one “about 20 minutes ago”. Officer did not wait 15 minutes to allow for the dissipation of any alcohol from the driver’s mouth but instead obtained an ASD and thereafter a breath sample from the driver at 23:42 hour (only 4 minutes after the initial police stop). That ASD sample registered a “FAIL”. Driver served a 90 day driving prohibition. Driver hires Jamie Butler who provided on appeal MCB’s Affidavit regarding his version of the events that evening which included his having driven to a friend’s house, having consumed 2 beer early in the evening with a gap in consumption and with the majority of the last (third) beer being consumed by him right before he left friend’s house. The driver admitting to having consumed some of the last beer while on the highway back to his own house because he was thirsty, indicating that the last sip from the beer can was only 3 minutes prior to being stopped for speeding by the police. An expert report from forensic toxicologist Nizar Shajani was also presented which showed that the consumption of 3 beer in the times suggested by the driver would not lead to a blood alcohol concentration of over 80 mg% in the driver. Mr. Shajani further indicated that an ASD can register a FALSE FAIL owing to recent consumption of an alcoholic beverage and a 15 minute waiting period from the time of the last consumption not being observed by the police officer to allow for the elimination of “mouth alcohol” from the subject driver’s mouth. An argument was presented on the IRP appeal that MCB’s blood alcohol concentration was never over 80 mg% and that the one ASD FAIL result occurred only because of “mouth alcohol” and was thus unreliable. On the IRP oral appeal the adjudicator found as follows: “Based on the evidence before me I am satisfied that you BAC was less than 80 mg%. “ Driving prohibition revoked, no fine imposed, all towing and impound were fees paid by the RSBC. (July 2015)
