RSBC v. RS – IRP APPEAL SUCCESSFUL – OPEN ALCOHOL IN THE VEHICLE DISGUISED IN PLASTIC WATER BOTTLE — “MOUTH ALCOHOL” FROM RECENT DRINK AFFECTING RELIABILITY OF ASD RESULTS – DRIVER PROVIDED TWO ASD SAMPLES BOTH WITH “FAIL” READING – BOTH ASD TESTS FOUND TO BE UNRELIABLE
Facts: On July 2, 2017 the Driver (RS) had spent the day riding horses with friends and then drove to her residence. At her residence she showered, prepared dinner and consumed 1 and a 1/2 alcoholic apple ciders. While consuming the second cider she realized that she was out of cider and wanted more. RS poured the second half of the contents of the remaining cider into a water bottle and drove the short distance from her residence to a Cold Beer and Wine Store in Langley. She was sipping from this cider disguised in a water bottle while she was driving. When she pulled her vehicle into the Cold Beer and Wine Store and police officer pulled in behind her at 10:30pm. The officer initially advised RS that she was being stopped for speeding which is something RS denied. The officer smelled alcohol on RS’s breath and RS admitted to the officer that she had “consumed 2 ciders 2 hours ago”. (This admission was not entirely correct but was made because RS was nervous about the open alcohol in the water bottle in her vehicle). The officer read an ASD demand to RS at 10:32 pm and was provided with two breath samples from RS into two separate ASD instruments, both tests read FAIL indicating BAC over 100 milligrams per cent (ie. well over the legal limit). The two tests were completed at 10:34pm and 10:39 pm am respectfully. The officer issued an IRP Notice of Driving Prohibition. RS hired Jamie Butler to fight her IRP 90 day driving prohibition. At the oral appeal an Affidavit was introduced indicating RS’s drinking pattern which was unconfirmed by anyone else as she had been drinking alone. RS described how she had been sipping from the open alcohol disguised in the water bottle immediately prior to the police stop (ie. at 10:28 pm). Forensic Expert Nizar Shajani provided an expert report indicating that, given the weight and times of consumption, RS’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. 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. (July 2017)
- Postscript: RS had admittedly been consuming open alcohol while driving and it is this very fact that helped her win this IRP appeal as her last consumption of alcohol was within 15 minutes of both ASD tests performed by the officer.
