RSBC v. TC — IRP APPEAL – SUCCESSFUL – MOUTH ALCOHOL DEFENCE – DRIVER STOPPED FOR SPEEDING HAD A COFFEE AND BAILEYS BESIDE HIM IN THE CAR AND HAD CONSUMED IT WITHIN 15 MINUTES OF PROVIDING TWO FAILED ASD BREATH TESTS– BREATH SAMPLES CONTAMINATED BY MOUTH ALCOHOL CAUSED BY RECENT CONSUMPTION – UNRELIABLE BREATH SAMPLES OBTAINED
Facts: On August 4, 2016 the driver was stopped for speeding by police at 9:20 am in Chetwynd, BC. The police officer prepared a sworn report stating that the driver’s breath smelled of “coffee and liquor”. When asked by the officer about whether he had been drinking the driver admitted he had consumed “last night”. Officer demanded breath samples based upon the smell coming from driver’s breath. Two FAIL results were obtained on two separate ASDs, the first at 9:26 am and the second at 9:29 am. Officer issued an IRP Notice of Driving Prohibition and Vehicle Impoundment. Driver hired Jamie Butler to fight the IRP 90 day driving prohibition. On appeal an Affidavit from the driver (TC) indicated that he had consumed 6 beers the night before, woke up, prepared a coffee and put Baileys Irish Cream in it, he took the coffee with him in his car when he dropped off his friend. The driver admitted to speeding on the way home but indicated he was sipping from his coffee and Baileys drink minutes before the police stopped him. TC’s friend also provided confirmatory statement. Forensic expert Nizar Shajani provided a report indicating that the alcohol from the 6 beer consumed the night before would have been eliminated by the body at 9:20 am and that coffee consumed with Baileys consumed at the times suggested in the Affidavit could contaminate the subsequent breath sampling making it unreliable. Expert Shajani suggested the actual BAC reading would have been 0 to 13 mg %. Decision: “You have satisfied me that your BAC (blood alcohol concentration) was less than 80 mgs % even though the ASD registered a “FAIL”. Driving prohibition revoked, no fine imposed, all towing and storage fees paid by RSBC. (August 2016)
