RSBC v. TB — IRP APPEAL – SUCCESSFUL – MOUTH ALCOHOL DEFENCE – DRIVER HAD CONSUMED ALCOHOL AND MUCH LATER DRIVEN VEHICLE, PULLED OVER AND THEN VOMITED MINUTES BEFORE POLICE INVOLVEMENT – BREATH SAMPLES CONTAMINATED BY MOUTH ALCOHOL CAUSED BY RECENT VOMIT – UNRELIABLE BREATH SAMPLES OBTAINED
Facts: On May 26, 2014 the driver was found by police at 2:50 am in Parksville, BC. The police officer prepared a very brief sworn report summarizing that the driving behaviour was “reported by a witness” and that the “driver was operating motor vehicle when stopped by police”. Officer indicated in his report that the driver exhibited slurred speech, was extremely argumentative and unsteady on his feet. A demand for samples was made at 2:51 a.m. and one breath sample on an ASD was obtained at 2:54 am which read “FAIL”. This FAIL result was 4 minutes after the police first dealings with the driver. The driver only gave one breath sample and was served a Notice of Driving Prohibition by the officer. Driver hired Jamie Butler to fight his IRP driving prohibition. An affidavit from the driver indicated that he had been at a new friend’s house where he consumed some wine and some shrimp dip. He fell ill and lay down in the spare bedroom and hours later decided to drive home as he felt lousy and did not wish to vomit in his friend’s house. On the way home (a 10-minute drive) he felt ill, pulled over and threw up and a passerby stopped to check on his condition. That passerby apparently called the police and left. The police arrived within minutes. There was no evidence of any vomiting referred to in the police report. The driver indicated in his affidavit that he had vomited minutes before the police arrival and he was tired and sick and not drunk but merely had vomited because he consumed a bad shrimp dip not because of excess alcohol consumption. Evidence was produced that the friend had left the shrimp dip (which contained mayonnaise) out in the sun earlier. Forensic Nizar Shajani produced a written expert report advising that recent vomiting can make breath readings unreliable if the police do not wait at least 15 minutes from the last vomiting occurrence. Decision: “I am not satisfied that the driver’s BAC readings were over 80 mgs”. Driving prohibition revoked, no fine imposed, all towing and storage fees were eventually returned to the driver. NOTE: It took the RSBC IRP adjudicator approximately 26 months to provide a written decision on this matter and no reason was given as to WHY it took so long. (July 2016)
