RSBC v. FS – IRP APPEAL SUCCESSFUL – “MOUTH ALCOHOL” FROM RECENT DRINK AND SIDE EFFECTS OF NAPROXEN MEDICATION CAUSING HEARTBURN AND AFFECTING RELIABILITY OF ASD RESULTS – DRIVER PROVIDED TWO ASD SAMPLES BOTH WITH “FAIL” READING – BOTH ASD TESTS FOUND TO BE UNRELIABLE AND DRIVER WITHIN LEGAL LIMIT
Facts: On March 25, 2017 the Driver (FS) had been playing hockey in a men’s league at a neighbourhood rink. After the hockey game FS joined his teammates in the changing room and drank 2 cans of beer. FS suffers from various ailments for which he takes a variety of medications, including NAPROXEN. One of the listed common side effects of taking naproxen is “indigestion, and/or heartburn”. After consuming the beer in the locker room FS drove his vehicle a short distance, did not completely stop at a red light when he turned right onto the highway and was stopped by the police. The officer noted that FS had both his windows both completely open at the time of the officer’s approach and he noted the fresh smell of alcohol of the breath of FS and his red glassy eyes. He noted FS avoiding eye contact and that he was speaking downward to mask the smell of alcohol from his breath, all of which raised the officer’s suspicion. The officer read an ASD demand and was later provided with two breath samples from FS into two separate ASD instruments, both tests read FAIL indicating BAC over 100 milligrams per cent (ie. well over the legal limit). The officer issued an IRP Notice of Driving Prohibition. FS hired Jamie Butler to fight his IRP 90 day driving prohibition. At the oral appeal an Affidavit was introduced indicating FS’s drinking pattern and his explanation for the incomplete stop at the red light and other suspicious roadside behaviour. FS indicated that the combination of the beer after the game and the naproxen medication caused him to suffer the ill-effects of heartburn including the repeated surge of stomach contents to the back of his throat. FS indicated he was made nervous by the officer and this aggravated his heartburn condition. Forensic Expert Nizar Shajani provided an expert report indicating that FS’s blood alcohol concentration should have been under the legal limit if he only consumed two beers and further indicated that ASD instruments can be adversely affected by “mouth alcohol” introduced into a subject’s mouth by way of a recent sip of beer or regurgitation of stomach contents containing beer occasioned by heartburn. Decision: “Was the result of the ASD on the basis of which the Notice of Prohibition was served not reliable? I have considered the oral and written submissions provided by Mr. Butler on your behalf and the evidence provided by the police. You have satisfied me that the results of the ASDs were affected by mouth alcohol and, as such, not reliable.” Result: revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (April 2017)
Here as a post-script it is noted that the ILL-AFFECTS of HEARTBURN can and WILL falsely elevate ASD tests to make the readings unreliable if a subject has alcohol from a recent drink undigested in his stomach and that subject regurgitates the contents within 15 minutes prior to taking a breath test on any ASD currently used by the police in BC.
