RSBC v. RT – IRP APPEAL SUCCESSFUL – MOUTH ALCOHOL DEFENCE — RECENT VOMITTING LEADS TO UNRELIABLE BREATH TESTING ON TWO ASD TESTS TAKEN WITH TWO DIFFERENT ASD INSTRUMENTS
Facts: On January 21, 2017 the Driver (RT) departed in his car from a dinner party where he had drank some wine and had later vomited. Blocks from the party the police were setting up a Counter-Attack police roadblock. RT drove into and through the roadblock and the police yelled and threw a flashlight at his car to get his attention. RT gradually pulled over. Officer noted smell of alcohol and when questioned RT indicated his last alcoholic drink was “about 2 hours ago”. Two roadside ASD tests were performed with two separate ASD instruments both yielding FAIL results. Officer issued an IRP Notice of Driving Prohibition and Vehicle Impoundment. RT hired Jamie Butler to appeal it. Evidence was presented by way of Affidavit in which RT indicated that at the moment he went through the roadblock he thought it was only in the preliminary stages of being set up by the police. He further indicated that earlier he had vomited and then left the dinner party he was attending. He indicated that he had also vomited on the side of the road while at the police roadblock between the two breath samples. The breath samples were taken 12 minutes apart and there was no evidence of vomiting or recent vomiting discussed in the police report filed by the officer. Forensic expert Nizar Shajani provided an expert report indicating that alcohol can last in the stomach for several hours and that vomiting up alcohol from the stomach to the mouth area can adversely affect breath test readings on an ASD by falsely elevating the test results if proper precautions are not taken by the police to ensure accurate breath testing. Mr. Shajani suggested the two glasses of wine consumed should not have yielded BAC testing over 80 mg%. Decision: “Having considered the evidence before me, you have satisfied me that the ASDs did not register a “FAIL” as a result of your BAC being not less than 80 mg %. Result: revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (February 2017)
Note: in this case in order to come to her conclusion the IRP Appeals adjudicator must have agreed that vomiting occurred and affected both roadside ASD tests taken 12 minutes apart (this despite the officer not mentioning the vomiting at all in his report).
