RSBC v. CLE – IRP ORAL APPEAL – SUCCESSFUL – MOUTH ALCOHOL DEFENCE — DRIVER FOLLOWED AFTER LEAVING PUB AND GIVEN ASD DEMAND AND FAILED THE ASC WITHIN 8 MINUTES OF LEAVING PUB – MOUTH ALCOHOL AFFECTED THE BRATH TEST MAKING IT UNRELIABLE
Facts: On June 26, 2016 at about 11:00 pm the driver left the Cheers Pub in Chetwynd on foot with his friend and entered his vehicle and attempted to drive home. Driver was followed from the Pub by the police. Officer indicated in his sworn report that he stopped the vehicle at 11:02 pm several blocks later only after the vehicle had made several wide turns and because the vehicle had tinted side windows. Officer advised that the driver told him that his last drink was “30 minutes ago” and Officer gave driver an ASD demand. A breath sample was provided at 11:08 pm by the driver and the result was a “FAIL”. The driver was then given the opportunity to call a lawyer which he did and he was provided with advice. The driver requested a second breath test which the officer allowed but after a couple of breath attempts that did not produce any valid results on the ASD the officer took the ASD machine away and served the driver with a Notice of Driving Prohibition based upon the first FAIL result. The driver hired Jamie Butler to fight the IRP. Affidavit evidence was produced by the driver and his passenger that only 2 beers were consumed by each between 10:00pm and 11:00pm at the Pub. The driver indicates his weight was 250 pounds. The driver also indicated in his affidavit that he had the “last sip” of his second beer about 10 seconds before leaving the Pub at 11:00pm. He disagreed with the officer’s version of his statement regarding his last drink. He indicated that he told the officer that his last drinks was “within 30 minutes” not “30 minutes ago” as suggested by the police report. The time of the first and only breath test was agreed to have been 11:08 pm. An expert report from Forensic Analyst Nizar Shajani was produced as evidence. This expert report showed that the any breath sample taken with 15 minutes of a last drink could be unreliable. Decision: “I am not satisfied that your BAC readings were at least 80 mgs even though the ASD registered a FAIL”. Driving prohibition revoked, no fines imposed, all towing and storage fees paid by RSBC. (July 2016)
