RSBC v. GB – IRP APPEAL SUCCESSFUL – MOUTH ALCOHOL ADVERSELY AFFECTING ASD TESTS — DRIVER STOPPED BY POLICE AFER SEEN LEAVING PUB – ADMITS VERY RECENT CONSUMPTION – OFFICER WAITS 15 MINUTES FROM DRIVER’S LAST ALCOHOLIC DRINK TO SECURE “RELIABLE” BREATH SAMPLE – DRIVER WAITS THE 15 MINUTES IN HIS OWN VEHICLE AND NOT UNDER OBSERVATION OF OFFICER – DRIVER VOMITS DURING 15 MINUTES OBSERVATION PERIOD – MOUTH ALCOHOL RESULTED IN AFFECTING THE TWO ASD TEST RESULTS — ASD TESTS FOUND TO BE UNRELIABLE
Facts: On December 12, 2016 the Driver (GB), a retired gentlemen, had been working on renovations at his house and then sent to a well-known Pub in Salmon Arm. He consumed a meal and 2 beers and left the pub. Police stopped him 2 blocks from the Pub (which was also 3 blocks away from his house) and when questioned by the police, admits having consumed the 2 beers and tells the officer he finished the second beer “2 minutes ago”. Officer makes a demand for breath samples but because of the recent admitted consumption the Officer decided to wait 15 minutes from the time of the last admitted drink before administering the ASD test(s). Officer allowed GB to wait during this time, outside her area of observation, and inside his vehicle. The officer who waited in her vehicle, then collects GB from his own vehicle and obtains two breath samples on two different devices. The results of each test was “FAIL” signifying a BAC of over 100mg%. Officer issued an IRP Notice of Driving Prohibition and Vehicle Impoundment. GB hired Jamie Butler to appeal it. Evidence was presented by way of Affidavit in which GB provided his drinking pattern (with times and amounts as indicated). He further indicates that during the police officer “observation period” (or the waiting period before the first ASD test) he vomited while inside his vehicle. He did not tell the officer about this when she came to get him. Forensic expert Nizar Shajani provided an expert report for GB which indicated that given GB’s weight and pattern of alcohol consumption that GB’s BAC would have been lower than 50%mg. Mr. Shajani indicated in his report that recent regurgitation by means of vomiting can adversely affect breath test readings on an ASD by falsely elevating the test results if a “proper 15 minute pre-test face to face observation period had not been conducted”. It was argued that the officer wrongly permitted GB to remain outside her area of observation during the waiting period prior to the testing and that the testing was unreliable as a result of “mouth alcohol” affecting the tests. Decision: ”I find one determinative issue in your case: “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: driving prohibition revoked – no fines imposed – all towing and storage fees paid by RSBC. (January 2017)
Here as a post-script it is noted that though the police officer did the “RIGHT THING” by waiting a prescribed time for alcohol to dissipate from the driver’s mouth, she SHOULD HAVE kept a continued watch on the driver during this “15 minute observation period” instead of allowing the driver to escape her view — as a result the testing would not be reliable where mouth alcohol from recent consumption brought up to the throat by vomiting occurred, such as in this case.
