RSBC v. BF — IRP APPEAL – SUCCESSFUL – MOUTH ALCOHOL AFFECT – ASD READINGS NOT REALIABLE — AFFIDAVIT AND OTHER EVIDENCE SHOWING DRIVER ONLY CONSUMING TWO GLASSES OF WINE IN TOTAL THAT EVENING — TWO BREATH SAMPLES WERE TAKEN — THE FIRST WAS 11 MINUTES AFTER LAST CONSUMPTION OF WINE AND THE SECOND WAS 17 MINUTES AFTER LAST CONSUMPTION OF WINE – BOTH ASD TESTS WERE OF QUESTIONABLE RELIABILITY BECAUSE OF POSSIBLE CONTAMINATION BY “MOUTH ALCOHOL” PRODUCING FALSE FAIL RESULTS ON THE ASDs – DRIVER’S ACTUAL BAC READINGS FOUND ON APPEAL TO BE UNDER 80 MGS% — IRP DRIVING PROHIBITION REVOKED
Facts: In the 22:52 hours of February 25th BF was stopped by the police for speeding on a major thoroughfare in a Lower Mainland suburb. The police officer noted a smell of alcohol on BF’s breath and upon questioning BF the police officer indicated in his report that BF explained having previously consumed one glass of wine thirty minutes previous. BF was read the ASD demand and later provided two samples of breath into two separate ASDs registering FAIL readings on both at 22:57 and 23:03. BF served a Notice of Driving Prohibition and BF’s vehicle towed and impounded. BF appeals and hires lawyer Jamie Butler. BF provided Affidavit evidence showing that BF had met a friend at a restaurant for dinner where she had consumed one glass of wine and had left there at 22:05. BF indicated that BF had then attended a nearby Pub were BF had met a work associate and had a second glass of wine between 22:10 and 22:46. The security video of the Pub established that BF had indeed left the Pub at 22:46. There was a receipt for one glass of wine from the Pub which was marked in evidence at the IRP oral appeal. BF was stopped by police at 22:52 (6 minutes after leaving Pub). BF’s first FAIL reading on the ASD was 11 minutes after BF’s last sip of wine and BF’s second FAIL reading on the ASD was 17 minutes after BF’s last sip of wine. An expert forensic report was obtained from Nizar Shajani, forensic analyst, showing that at least that the first ASD test could have been contaminated by “mouth alcohol” as the wine was last consumed within 15 minutes of that ASD test. Shajani’s report put BF’s hypothetical BAC readings at below 80 mgs at both testing time(s). On the oral IRP appeal it was argued that at the very least the first ASD FAIL result was not reliable owing to the possibility of being contaminated by “mouth alcohol” from the last glass of wine. It was further argued that the provisions of the Motor Vehicle Act indicate that a driver is entitled to have at least two valid and reliable ASD tests with the lower of the two results prevailing in terms of the penalties to be provided to the driver via the legislative regime. Decision: “After reviewing the evidence before me, I am satisfied that your BAC (blood alcohol concentration) was less than 80 mgs%.” Driving prohibition revoked, no fine imposed, car released and all towing and impound were fees paid by the RSBC. (March 2015).
