Facts: At 2:50 a.m. in a Lower Mainland suburb a police officer was conducting a police roadblock on a highway onramp. The officer witnessed HG driving up to the roadblock with passengers in the vehicle and thereafter noticed an odour of liquor and the driver admitted to having consumed 3 beers with the last drink 2 hours ago in Vancouver. At the roadside the driver provided two samples of breath into two separate ASDs with FAIL results on both tests at 2:53 a.m. and 2:56 a.m.. On the IRP oral review the driver testified in an Affidavit that he and his party had originally been drinking at a bar but then gone to a restaurant where they ate. The driver testified said that after consuming some food he hereafter he had vomited as he was gluten sensitive and had eaten a gluten product. After leaving the restaurant he had vomited and thereafter was “burping up small amounts of his stomach contents into his mouth” and regurgitating these contents in the back of his mouth. After the vomiting episode the driver felt well enough to drive himself and his party home. The passengers also testified by way of written statement that the driver had only consumed alcohol in a moderate amount at the bar but had later vomited after the late night snack. An expert report from Nizar Shajani, forensic toxicologist was submitted showing that HG’s likely BAC would have been within the legal limit but that it was likely that the effects of the vomiting and regurgitation of alcohol from the stomach lead to FALSE FAIL results on the ASDs used. Decision: “After reviewing all of the evidence before me, on a balance of probabilities, I cannot be satisfied that the ASD results were reliable. Consequently, I am satisfied that your BAC (blood alcohol content) was less than 80 mg% even though the ASD registered a FAIL.” Driving prohibition revoked, no fines imposed, towing and storage fees paid by the SMV. (March 2014).
