RSBC v. NR – IRP APPEAL SUCCESSFUL – “MOUTH ALCOHOL” FROM RECENT DRINK AFFECTING RELIABILITY OF ASD RESULTS – DRIVER PROVIDED TWO ASD SAMPLES BOTH WITH “FAIL” READING – ADJUDICATOR FINDING BLOOD ALCOHOL CONTENT OF DRIVER LESS THAN 80 MG% DESPITE ASD FAILURES ON TWO SEPARATE TEST PERFOMED ON TWO SEPARATE ASD UNITS
Facts: On March 20, 2017 the Driver (NR) had been at a Karaoke type of restaurant in Delta. NR had met up with 3 others at the restaurant and NR was to be the sober “designated driver” for the 3 of them. NR was at the restaurant for just over 3 hours and sipped on ONE GLASS OF WINE throughout the night. NR finished the last sip of wine at approximately 12:33 am. NR and the 3 others left in NR’s car and drove a short 650 meters and during this time she was noted by an on-duty RCMP officer to be changing lanes from the fast to slow lane abruptly and cross the broken lines twice. NR was pulled over. The officer noted NR had slurred speech and said NR fumbled with her driver’s license. The officer read a demand and two separate breath samples were taken on two separate ASD devices with FAIL results at 12:44 am and 12:57 am. NR hired Jamie Butler to fight her IRP 90 day driving prohibition. In the RCMP officer’s filed IRP report Mr. Butler noted the officer had irreconcilable difficulties describing the operability requirements of the second instrument (which was described in his filed report as an Alco-Sensor FST) and that he misdescribed the actual digital readings and seemingly confused it with the operability of a different type of ASD unit (ie. an Alco-sensor IW DWF). This made the results of the second ASD test suspect as the officer’s report was WRONG in his description of the operability requirements of the described ASD unit in his filed report. This was exposed by the Mr. Butler through the use of an expert report from Forensic Expert Nizar Shajani that was submitted on the IRP oral hearing. As the first ASD test was taken within 15 minutes of NR’s last sip of wine it was argued that this test was affected by “mouth alcohol” and that this first ASD test result was unreliable and the FAIL result was not indicative of NR’s actual blood alcohol concentration. Three statements were filed from the 3 passengers in NR’s vehicle and all confirmed that NR only drank ONE glass of wine throughout the evening. Decision: “Was your BAC (blood alcohol concentration) less than 80 mg% even though the ASD registered a “FAIL”? You have satisfied me that your BAC was less than 80mg% even though the ASD registerd a “FAIL” Result: revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (May 2017)
Here as a post-script it is noted that even though the SECOND ASD result was taken about 24 minutes after the last sip of wine (and therefore likely NOT affected by ‘mouth alcohol’ from the last sip of wine) the Adjudicator was convinced the second test was not confirmatory of the first ASD test (in which there was a FAIL result within 15 minutes of the last sip of wine) – the crucial factor here was that the officer mis-described how the second ASD unit could have operated and this was exposed through the use on an expert report from a recognized forensic alcohol expert, Nizar Shajani, resulting in a BIG WIN for the client.
