RSBC v. AG – IRP APPEAL SUCCESSFUL – “MOUTH ALCOHOL” FROM RECENT DRINK AFFECTING RELIABILITY OF ASD RESULT – POLICE STOPPED DRIVER AFTER VEHICLE BLEW STOP SIGN — POLICE FOUND OPEN BEER AND A BOTTLE OF WHISKEY IN VEHICLE — DRIVER PROVIDED ONE ASD SAMPLE WITH “FAIL” READING – BREATH SAMPLE WAS TAKEN WITHIN 11 MINUTES FROM DRIVER’S LAST SIP FROM THE OPEN BEER IN HIS VEHICLE -– ASD TESTS FOUND TO BE UNRELIABLE AND DRIVER WITHIN LEGAL LIMIT
Facts: On February 4, 2017 the Driver (AG) picked up two friends in his pickup to attend a concert – one friend brought a case of beer and the other brought a bottle of whiskey into AG’s vehicle. AG drove to another friend’s house (SB’s house), parked his pickup and all three friends took a cab from there to the concert. AG drank several beer at the concert and slept at SB’s house. AG awoke early (at 2:35am) to commence a drive to a remote work location in Northern BC. While waiting for his pickup to warm up he consumed a swig of beer from a beer can that his friend had left in his pickup the night before. Two minutes later he drove a short distance and through a stop sign. The police stopped him and noticed AG’s breath smelled of liquor, he appeared groggy, confused at times, had slurred speech and bloodshot and watery eyes. AG admitted to the officer to having previous consumed “a few hours ago” at the concert but said nothing about sipping from the beer moments earlier. Police asked about the alcohol in his pickup and AG indicated it belonged to friends. Police demand a breath sample at the concert. AG provided a FAIL reading on one ASD at 2:51 am. This singular breath sample was taken within 11 minutes of the swig of beer. Officer issued an IRP Notice of Driving Prohibition and Vehicle Impoundment. AG hired Jamie Butler to appeal it. Evidence was presented by way of Affidavit in which AG indicated he consumed 4 beer at the concert the night before and had, just before the police stop, consumed from the beer left in his pickup the night before. He agreed that he made a “rolling stop” through the stop sign. Forensic expert Nizar Shajani provided an expert report indicating that alcohol from a last drink can adversely affect and artificially inflate the readings on an ASD where a “15 minute face to face observation period is not conducted by the police”. No such observation period was performed on AG by the police officer. Mr. Shajani suggested the 4 beers consumed from the night before should not have yielded BAC testing over 80 mg%. Decision: “Was your BAC less than 80mg% even though the ASD registered a “FAIL””. You have satisfied me that your BAC was less than 80 mg% even though the ASD registered a “FAIL”.” Result: revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (February 2017)
Here as a post-script it is noted that the police officer did not observe AG for the “required 15 minutes” because AG had allegedly indicated to him that his last drink was “a few hours ago”. AG indicated in his Affidavit that he took a swig of beer minutes before the police stop and about 11 minutes from the time of the breath test. The adjudicator in this case must have been convinced “on a balance of probabilities” that AG’s time estimates and consumption pattern were truthful.
