RSBC v. RW – IRP APPEAL SUCCESSFUL – DRIVER LEFT PUB IN VEHICLE AND FOLLOWED BY POLICE – DRIVER BURPED INSIDE HIS VEHICLE WHEN OFFICER PRESENT — “MOUTH ALCOHOL” FROM RECENT DRINK AND LATER BURP AFFECTING RELIABILITY OF ASD RESULTS – DRIVER PROVIDED TWO ASD SAMPLES BOTH WITH “FAIL” READING – BOTH ASD TESTS FOUND TO BE UNRELIABLE EVEN THOUGH SECOND ASD SAMPLE BEYOND 15 MINUTES FROM LAST CONSUMPTION – BURPING AFFECTS ASD TESTING!
Facts: On December 8, 2017 the Driver (RW) had spent a long day working at a mine in Northern BC. On his way home he decided to stop into a well-known Pub and restaurant in Chetwynd for dinner. Once inside he realized the kitchen was closed. The bartender served him two beers which he did consume in pretty rapid succession. He left the Pub within 40 minutes of his arrival, at 11:35 pm. He got into his truck and unknown to him he was followed by a police officer who was stationed outside the Pub. The officer wrote a report indicating that RW made several driving infractions (failing to completely stop at a railway track and later at another stop sign and illuminating an LED bar for no reason). RW was stopped at 11:38 pm. When the officer approached his vehicle RW leaned over to the glove box to get his paperwork and burped as he did so. After RW “agreed” with the officer that he (RW) had been consuming liquor AND that the last drink was 20 minutes prior, the officer formed the grounds that RW was drunk and read an ASD demand to RW at 11:39 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 11:46pm and 11:53 pm respectfully. The first test was completed within 15 minutes of RW’s last sip of beer but the second was completed about 18 minutes after that last sip (but within 15 minutes of his reported burping within the vehicle). The officer issued an IRP Notice of Driving Prohibition. RW hired Jamie Butler to fight her IRP 90 day driving prohibition. At the oral appeal an Affidavit was introduced indicating RW’s drinking pattern which was confirmed by a letter from the bartender at the Pub. RW described how he had BURPED after the officer had stopped his vehicle while searching for papers in his glovebox (ie. at 11:38 pm and within 15 minutes of the second ASD test). Forensic Expert Nizar Shajani provided an expert report indicating that, given the weight and times of consumption, RW’s blood alcohol concentration should have been under the legal limit if he only consumed the alcohol he indicated in his Affidavit 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 or by way of “BURPING” if there was alcohol in a subject’s stomach. 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 “FAIL” results. Result: revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (January 2018)
- Postscript: RW had admittedly been consuming alcohol immediately prior to driving but importantly for him he ALSO had admitted in his Affidavit to what occurred after being stopped by the police (having burped). The first ASD sample was taken within 15 minutes of his last sip of beer but the second was only taken within 15 minutes of his last burp after recent consumption. The adjudicator implicitly and explicitly found that the burp had affected the second ASD reading resulting in falsely elevated BAC readings and allowed this appeal.
