RSBC v. BS — REFUSAL OF ASD — IRP ORAL APPEAL – SUCCESSFUL – DRIVER SEEN LEAVING A PUB PARKING LOT – DRIVER STOPPED AND NOTED BY POLICE TO HAVE SMELL OF ALCOHOL ON BREATH AND GIVEN ASD DEMAND – DRIVER ATTEMPTS TO PROVIDE SAMPLES ON SEVEN OCCASIONS – OFFICER DEEMS REFUSAL – DRIVER HAD PREVIOUSLY CONSUMED ROBITUSSEN DM COUGH MEDICINE ACCOUNTING FOR SMELL OF ALCOHOL – DRIVER HAD SEVERE CONGESTION OWING TO TERRIBLE FLU – DRIVER FOUND ON IRP TO NOT HAVING FAILED OR REFUSED TO COMPLY WITH A VALID ASD DEMAND – PROHIBITION REVOKED
Facts: On February 20th BS had worked until 3:00pm and joined a work associate for ONE beer at that time and then went home. BS was suffering from the latent effects of an earlier bad flu that had previously kept him off work for 5 days. Symptoms on February 20th included some congestion with some respiratory symptoms for which he was taking ROBUTISSEN DM cough medicine. A friend (PD) had arrived at BS’s home much later. At 11:00pm BC agreed to drive and drop off his friend PD at a nearby Pub to meet others (BS was to return home to sleep). At 11:30 pm while dropping of PD at the Pub BS seen leaving the Pub parking lot by police officer and stopped for having a “defective license plate light”. Officer noted the smell of alcohol on BS’s breath but no other symptoms of previous alcohol consumption. Officer made ASD demand and thereafter BS attempted to provide breath samples on 7 separate occasions. Officer accuses BS of “faking” attempts in order to defeat the ASD. Officer notes in his written report that BS provided no physical reasons for not being able to provide samples. Officer deems a refusal. BS hires lawyer Jamie Butler to fight the IRP appeal. On appeal BS provides an Affidavit advising of his medical condition on February 20th (which conflicts with the noted lack of physical reasons for not being able to provide samples outlined by the police report) and provides internet search of Robitussen DM cough medicine showing that it contains “alcohol” as an ingredient (thereby accounting for the smell of alcohol on his breath). BS indicates in his Affidavit that he was attempting to provide a sample on each occasion but he could not provide enough air. Expert Report from Nizar Shajani, forensic ASD specialist, produced on appeal showing that NOT everyone can provide enough air for an ASD especially those experiencing bronchitis or severe respiratory symptoms. It was argued on irp appeal that BS was not attempting to defeat the ASD test and had a respiratory illness that prevented him from providing samples into the ASD. Though there were other issues raised on the appeal the adjudicator found: “I will focus on the one key issue. Based upon the evidence before me, I am not satisfied that you failed or refused to comply with an ASD demand”. Driving prohibition revoked, no fine imposed, all towing and impound were fees paid by the RSBC. (March 2015)
