Facts: At 11:02 pm LX was driving himself and 3 female friends from another friend’s house to where he was stopped by the police. Where he was stopped by the police initially for speeding was a mere 2 minutes from his friend’s house (he left there at 11:00pm). He was noted by the office to have an odour of alcohol on his breath, to have fumbled with his driver’s license upon production of it to the police, and to have slurred speech. The police indicated LX admitted he had consumed some beer earlier. They said that LX said at the time of the police questioning that his last drink was consumed 2 hours earlier (at 9:00pm). Two ASD breath samples were taken (at 11:07 pm and 11:14 pm) with both registering a “FAIL”. LX produced an Affidavit indicating that the police officer got it wrong. LX said in his Affidavit that he had consumed 3 beers with the last sip being at 11:00pm and NOT 9:00pm (as suggested by the police report). For the IRP appeal LX submitted 3 written statements from the girls that he was driving home to confirm this. He also submitted a written expert report from a forensic toxicologist (Nizar Shajani) that indicated that based upon the consumption pattern provide by XI his BAC (blood alcohol concentration) should have been below 80 mg%. The expert indicated that “mouth alcohol” from the last sip of beer at 11:00pm could have falsely elevated the actual BAC readings to produce TWO false readings on the ASD units used. Decision: The Superintendent’s Report on Approved Screening Devices (ASDs) states that breath samples are taken at least 15 minutes after the last drink was consumed to allow for elimination of mouth alcohol. I am not satisfied that you BAC was at least 80- mg % even though ASD registered a FAIL. (June 2013).
