RSBC v. JJ – IRP APPEAL SUCCESSFUL – “MOUTH ALCOHOL” FROM RECENT DRINK AFFECTING RELIABILITY OF ASD RESULT — DRIVER TURNS AROUND AT POLICE ROADBLOCK AND STOPPED BY POLICE A BLOCK AWAY WHERE NUMEROUS IMPAIRMENT SYMPTOMS NOTED — DRIVER PROVIDED ONE ASD SAMPLES WITH “FAIL” READING AFTER PREVIOUSLY CONSUMING COCKTAILS AT A NEARBY RESTAURANT – BREATH SAMPLE WAS TAKEN WITHIN 7 TO 10 MINUTES OF LAST RUM AND COKE -– ASD TESTS FOUND TO BE UNRELIABLE AND DRIVER WITHIN LEGAL LIMIT
Facts: On January 1, 2017 the Driver (JJ) met a friend at a popular restaurant in Burnaby where he ate a meal and finished 2 rum and cokes. JJ’s friend purchased another rum cocktail for JJ in an effort to get him to stay and JJ drank half of it before he left at 11:13pm. JJ drove 2 minutes and ran into a police counterattack roadblock at 11:15pm. JJ was noticed by police to avoid the roadblock by U-turning in a nearby around in a bus loop. He was stopped by a police officer who stated JJ was noticeably drunk. Officer indicating JJ “smelled heavily of alcohol; had bloodshot glassy eyes; could hardly keep his head up; was swaying side to side; could barely focus on the officer; was unable to walk straight; had to be prevented from walking into traffic, etc.” When questioned by the officer allegedly JJ said he “had a couple of drinks, 20 minutes ago”. JJ provided a FAIL reading on one ASD at 11:20pm. This singular breath sample was taken within 7 to 10 minutes of the last rum and coke. Officer issued an IRP Notice of Driving Prohibition and Vehicle Impoundment. JJ hired Jamie Butler to appeal it. Evidence was presented by way of Affidavit in which JJ indicated that despite what he told the officer at the roadside he had actually consumed the last rum and coke 5 minutes from the time he was pulled over. JJ indicated he did not purposely avoid the police roadblock but was only correcting his direction in the bus loop. He indicated that the officer grabbed him by the arm when he exited the vehicle and disputed the officer’s characterizations of the balance symptoms. Forensic expert Nizar Shajani provided an expert report indicating that alcohol from a last drink can adversely affect and artificially inflate the readings on an ASD where a “15 minute face to face observation period is not conducted by the police”. No such observation period was performed on JJ. Mr. Shajani suggested the 2 ½ rum and cokes should not have yielded BAC testing over 80 mg%. Decision: “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”. I find this issue to be determinative of this review.” Result: revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (January 2017)
Here as a post-script it is noted that the police officer did not observe JJ for the “required 15 minutes” because JJ had allegedly indicated to him that his last drink was “20 minutes ago”. JJ indicated in his Affidavit that his last sip of rum and coke was 5 minutes before the police stop and 7 to 10 minutes from the time of the breath test. The adjudicator in this case must have been convinced “on a balance of probabilities” that JJ’s time estimates were accurate.
