RSBC v. HL – IRP APPEAL SUCCESSFUL – MOUTH ALCOHOL ADVERSELY AFFECTING ASD TESTS — DRIVER STOPPED BY POLICE ON HIGHWAY MINUTES AFTER HIS CONSUMPTION OF BEER AT A KOREAN RESTAURANT — DRIVER PROVIDED TWO ASD SAMPLES BOTH WITH “FAIL” READINGS – BOTH ASD READING TAKEN WITHIN 15 MINUTES OF LAST CONSUMPTION OF BEER – MOUTH ALCOHOL RESULTED IN AFFECTING ASD TEST RESULTS — ASD TESTS FOUND TO BE UNRELIABLE
Facts: On April 2, 2015 the Driver (HL), a foreign student studying in BC, had been at a late movie with a friend, after which he consumed two beer with Korean food at a restaurant in North Burnaby. He finished the last sip of beer at 11:30 pm and left the restaurant to drive home. Police stopped him at 11:37 pm on Highway #1 eastbound as a result of a “speeding” infraction. Symptoms of previous alcohol consumption were noted and a breath demand made by the officer and TWO separate breath samples were given on TWO separate ASD devices at 11:40 pm and 11:45 pm. Officer issued an IRP Notice of Driving Prohibition and Vehicle Impoundment. HL hired Jamie Butler to appeal it. Evidence was presented by way of Affidavit in which HL provided his drinking pattern (with times and amounts as indicated). Forensic expert Nizar Shajani provided an expert report for HL which indicated that given HL’s weight and pattern of alcohol consumption that HL’s BAC would have been lower than 50%mg. Mr. Shajani indicated in his report that recent consumption can adversely affect breath test readings on an ASD by falsely elevating the test results if a “15 minute pre-test face to face observation period had not been conducted”. It was argued that the testing was unreliable as a result of “mouth alcohol” affecting the tests. 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 17 months to reach their decision, in the interim HL was permitted to drive and was not prohibited. Result: revocation of driving prohibition – no fines imposed – all towing and storage fees reimbursed to HL. (September 2016)
