RSBC v. NR – IRP APPEAL SUCCESSFUL — OFFICER MISDESCRIBES THE ASD TEST RESULTS IN HIS REPORT BY DESCRIBING A SET OF STATUS MESSAGES THAT COULD NOT POSSIBLY OCCUR – DRIVER PROVIDED ONE ASD SAMPLE WITH A “FAIL” READING – THEN ATTEMPTED BUT FAILED TO PROVIDE A SECOND ASD SAMPLE — ASD TEST FOUND TO BE UNRELIABLE AND DRIVER WITHIN LEGAL LIMIT OWING TO FAULTY BREATH TEST READING
Facts: On April 8, 2017 the Driver (NR) had picked up two friends and had driven them from Richmond to a well-known Indian restaurant in Delta. At the restaurant NR consumed one glass of wine from 9:40 pm until just before leaving at 12:33 am. She got into her car with her two friends (SS and JB) and left the parking lot. SS lived in Surrey and had been drinking. SS was providing NR with directions to his house. SS’s directions were not clear to NR who changed lanes repeatedly back and forth which drew the attention of the police. The police stopped NR at 12:39 am. The officer indicated (in his written report) that NR admitted to having consumed some alcohol at about 9:30pm. The officer, Cst. Clarke, read an ASD demand to NR and NR immediately provided him with a breath sample into an ASD at 12:44 am. The result read FAIL indicating BAC over 100 milligrams per cent (ie. well over the legal limit). NR was offered a second ASD test on a different instrument and Officer Clarke indicated that this was possible. Thereafter Cst. Clarke’s filed report did not adequately explain exactly what occurred. There was a substantial (20 MINUTE) time period that was not really accounted for. Cst. Clarke indicated that during the second set of tests “NR was given 4 opportunities … always with “NO GO results””. NR hired Jamie Butler to fight her IRP 90 day driving prohibition. At the oral appeal an Affidavit was introduced indicating NR’s drinking pattern which was confirmed by written statements from SS and JB. Forensic Expert Nizar Shajani provided an expert report indicating that NR’s blood alcohol concentration should have been under the legal limit if she only consumed the alcohol she indicated she had consumed and further indicated that ASD instruments can be adversely affected by “mouth alcohol” introduced into a subject’s mouth by way of a recent consumption of alcohol. Importantly Mr. Shajani also described in his report how a properly functioning ASD could not yield four consecutive “NO GO” status message reading and ergo the second ASD instrument either was not functioning properly or the officer was not utilizing the ASD as trained and instructed. Decision: “Did the ASD register a “FAIL” but your BAC was less than 80 mg%?” 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. (April 2017)
Postscript: here the decision was based upon “mouth alcohol” affecting a singular ASD test result however the officer had indicated in his report a set of circumstances that could not possibly have occurred according to the submitted DEFENCE EXPERT REPORT. As the officer described an impossibility the adjudicator, in this author’s opinion, had no recourse but allow the appeal.
