RSBC v. WL – IRP APPEAL SUCCESSFUL – “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 AND DRIVER WITHIN LEGAL LIMIT OWING TO FAULTY BREATH TEST READINGS
Facts: On May 21, 2017 the Driver (WL) had met up with her two girlfriends around midnight. WL consume 1 vodka mixed drink and 1 beer while there and left at between 2:35am and 2:38am. She left in her car with one of her girlfriends (TF) to drive TF home and then carry on to her residence. WL lived within a 3 minute drive of the residence where she had been consuming alcohol. At 2:41am she drove right into a police sobriety checkpoint. She admitted to having previously consumed some alcohol and the officer noted no other symptoms of impairment aside from the smell of alcohol on her breath. The officer read an ASD demand and was later provided with two breath samples from WL 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 2:44 am and 2:47am respectfully. The officer issued an IRP Notice of Driving Prohibition. WL hired Jamie Butler to fight his IRP 90 day driving prohibition. At the oral appeal an Affidavit was introduced indicating WL’s drinking pattern which was confirmed by a written statement from TF. Forensic Expert Nizar Shajani provided an expert report indicating that TF’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 of beer/vodka. 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. (June 2017)
- Postscript: recently consumed alcohol (ie. alcohol consumed within 15 minutes of ASD testing can and will cause an ASD to produce a falsely high ASD test result (here two FAIL results).
