RSBC v. GB – IRP APPEAL SUCCESSFUL – “MOUTH ALCOHOL” FROM RECENT DRINK 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 OWING TO FAULTY BREATH TEST READINGS
Facts: On January 21, 2018 the Driver (GB) had met up with his friends at a local tavern in Maple Ridge while his wife was at home with friends having a “baby shower” for the expected baby. GB’s friends drank a lot of alcohol but as GB’s wife was expecting a baby he nursed ONE BEER the entire night. GB departed the tavern at 1:48 am but before he did he downed the last of the beer that he had been nursing. He left the tavern with his two friends and they all entered his small pick up t drive his friends home. They departed the tavern’s parking lot at 1:49 am (a minute after his last consumption of beer). The police were lurking around and noticed that GB failed to come to a “complete stop” at a stop sign and merging into traffic. The police noticed GB’s vehicle then drift over the lane divider line and “almost cross the dotted line” and then take a wide turn at a light. The police stopped GB’s vehicle blocks away from the tavern. The police officer asked GB who admitted that “he had a drink about an hour ago” and the officer noted that GB produced several cards to him when the officer asked for his driver’s license only. The officer read an ASD demand and was later provided with two breath samples from GB 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. GB hired Jamie Butler to fight his IRP 90 day driving prohibition. At the oral appeal an Affidavit was introduced indicating GB’s drinking pattern and his explanation for the alleged driving infractions. On GB’s Affidavit submitted on the IRP appeal GB indicated that both breath samples were taken within 10 to 11 minutes of his last consumption of his “nursed” beer. His wife said that he was stone cold sober when he later arrived at home and that his breath did not even smell of alcohol. Forensic Expert Nizar Shajani provided an expert report indicating that GB’s blood alcohol concentration should have been under the legal limit if he only consumed the one beer over at the tavern 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. Decision: “Was your BAC (blood alcohol concentration) less than 80 mgs% 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: revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (February 2018)
Here as a post-script it is noted that a simple SIP on an alcoholic beverage (here, beer) can cause an ASD to produce a falsely high ASD test result (here a FAIL result) if the SIP was within 15 minutes before an ASD test.
