RSBC v. ND – IRP APPEAL SUCCESSFUL – DRIVER STOPPED AT POLICE ROADBLOCK AND PROVIDED TWO ASD SAMPLES BOTH WITH “FAIL” READINGS – DRIVER PREVIOUSLY DRANK TWO GLASSES OF WINE BUT WAS ON A COMBINATION OF MEDICATIONS THAT GAVE HER “BAD HEARTBURN” (GASTROESOPHAGAEL REFLUX) – DRIVER REGURGITATING ALCOHOL FROM HER STOMACH CONTENTS INTO THROAT BEFORE TESTING – ASD TESTS FOUND TO BE UNRELIABLE
Facts: On December 13, 2014 the Driver (ND) attended a nearby casino where she drank 2 glasses of wine while gambling. She left casino and before entering her car saw a “noticeable police Christmas roadblock” on the road perimeter of the Casino. She drove into the roadblock and was stopped by the police, admitted consumption and the officer noted symptoms (watery eyes, smell of alcohol on breath) and thus breath samples were demanded and two sample provided into two separate ASD instruments. Both ASD test yielded fail results. Officer issued an IRP Notice of Driving Prohibition and Vehicle Impoundment. ND hired Jamie Butler to appeal it. Evidence was presented by way of Affidavit in which ND indicated that she been taking a combination of medications as a result of recent knee surgery and that those medications gave ND “bad heartburn”. She was suffering from gastroesophageal reflux (regurgitating of stomach contents into the back of her throat) at the time of the ASD testing. Forensic expert Nizar Shajani provided an expert report indicating that alcohol can last in the stomach for 3 hours and that regurgitation of same can adversely affect breath test readings on an ASD by falsely elevating the test results. Mr. Shajani suggested the two glasses of wine should not have yielded BAC testing over 80 mg%. Decision: ”After reviewing the evidence before me I find there is one issue that is determinative of this review: “Was your BAC less than 80mg% even though the ASD registered a “FAIL””. I am satisfied that your BAC was less than 80 mg%. It took the appeals officer 22 months to reach their decision, in the interim ND was permitted to drive and was not prohibited. Result: revocation of driving prohibition – no fines imposed – all towing and storage fees reimbursed to ND. (September 2016)
