RSBC v. IH – IRP APPEAL SUCCESSFUL – DRIVER STOPPED AT POLICE ROADBLOCK AND PROVIDED TWO ASD SAMPLES BOTH WITH “FAIL” READINGS – DRIVER PREVIOUSLY CONSUMED TWO BEER AT A TEAM BBQ BUT WAS ON A COMBINATION OF MEDICATIONS AND HAD EATEN SPICY FOOD THAT GAVE HIM HEARTBURN – DRIVER REGURGITATING ALCOHOL FROM HIS STOMACH CONTENTS INTO THROAT BEFORE TESTING – ASD TESTS FOUND TO BE UNRELIABLE
Facts: On July 11, 2014 on a nice summer evening the Driver (IH) had been playing softball in Richmond. After the game the team had a BBQ and IH had two beers along with chicken wings. He departed the BBQ and drove his girlfriend from the BBQ to her home to North Vancouver and then attempted to drive back home to Richmond. IH met up with a counter-attack roadblock on the Second Narrows Bridge after 1:00am. Officer stopped IH who admitted previous alcohol consumption (1 ½ hours earlier). Officer noted several symptoms: odour of alcohol on breath, drowsy appearance, eyelids droopy, eyes red and watery, speech mildly slurred, swaying when standing. Officer demanded breath samples and two ASD tests were provided, both with FAIL results. Officer issued an IRP Notice of Driving Prohibition and Vehicle Impoundment. IH hired Jamie Butler to appeal it. Evidence was presented by way of Affidavit in which IH indicated that he been taking a combination of medications as a result of brain tumour surgery and that the side effects of which caused heartburn. He had heartburn after eating the chicken wings and had left his heartburn medication at home. He testified that he was regurgitating his stomach contents and suffering from “gag reflex” at the time the ASD tests. Forensic expert Nizar Shajani provided an expert report indicating that alcohol can last in the stomach for 3 hours and that regurgitation of same can adversely affect breath test readings on an ASD by falsely elevating the test results. Shajani suggested the two beer should not have yielded BAC testing over 80 mg%. Decision: ”Having reviewed all of the evidence before me I find there is one determinative issue in this review: “Was your BAC less than 80mg% even though the ASD registered a “FAIL””. I am satisfied that your BAC was less than 80 mg%. It took the appeals officer 26 months to reach their decision, in the interim IH was permitted to drive and was not prohibited. Result: revocation of driving prohibition – no fines imposed – all towing and storage fees reimbursed to IH. (September 2016)
