Facts: At about 8:47PM SGW was stopped at a police sobriety checkstop in a Vancouver Island Community. Inside the vehicle were SGW and 2 passengers. The officer smelled an odour of liquor inside the vehicle and directed the vehicle off the roadway, he then inquired of all 3 persons as to whether anyone had consumed liquor, all denied same. The officer separated SGW from the other 2 passengers and SGW emphatically denied consuming any liquor. The officer apparently had SGW blow into his hand twice to confirm the smell of alcohol from SGW’s breath and by performing this “test” apparently confirmed to himself that the smell of alcohol was coming from SGW’s breath. The officer made a demand for samples of SGW and retrieved an ASD for sampling. Upon being presented the ASD SGW protested the grounds for the ASD. The officer maintained that he “smelled liquor” and SGW indicated “BULLSHIT YOU DID!” and questioned the officer further about his ability to refuse the sampling process. The officer apparently explained to SGW that if he refused then he would be charged with refusal. SGW questioned the officer further and upon not getting satisfactory answers to his questioning advised the officer he wanted to “phone [his] lawyer first” and walked away. The officer indicated to SGW that he was going to issue a roadside prohibition and returned to his police car. When the officer went to serve the police paperwork (including the Notice of Prohibition) upon SGW he was nowhere to be found. The officer went to the car and asked the passenger, SGW’s wife, about the location of her husband (SGW) and was advised that she did not know the location of SGW and that he apparently told her that he was “not going to lose everything over this and that he needed to speak to his lawyer” and then walked away. An argument was advanced that no alcohol had been consumed by SGW which was verified by the statements of the two other passengers, one of which had previously consumed alcohol.
Decision: The adjudicator wrote: “Mr. Butler argued that there was insufficient evidence before me that a lawful demand was made in accordance with the requirements of section 254… Based upon all of the evidence before me, I am satisfied on a balance of probabilities that [the officer] did not make a valid demand.”
** Note that there is a requirement in section 254 of the Criminal Code for any demand for breath samples into an ASD to be based upon an officer’s “reasonable suspicion “ that the offender has alcohol in his/her body and thus it is concluded that the adjudicator in this case was not sufficiently satisfied on the whole of the evidence presented that the officer had that such reasonable suspicion and ergo made an invalid demand for breath samples upon SGW which meant in turn that SGW could legally refuse said invalid demand.
Intended driving prohibition revoked, no fine imposed, application fee returned to the applicant (January 2014)
