Facts: Sometime after 1:30am TF was pulled over by the police for speeding. TF was questioned by the first police officer about previous alcohol consumption and he denied any previous alcohol consumption. A second police officer took over the investigation from the first officer. She noted a smell of alcohol on TF’s breath and the police reports that were filed by this second officer on this matter did NOT indicate whether a legal “demand” or merely a “request” for breath samples was made to TF. An ASD device was produced by the officer and poor instructions/guidance was given to TF who had never blown into an ASD before. In total 6 separate attempts were provided by TF into the ASD device but none resulted in a satisfactory sample into the ASD and no reading was obtained (said the officer). The officer indicated that TF was only pretending to blow and never produced any air into the machine. She issued a Notice of Driving Prohibition – IRP to TF based upon the fact that she believed TF failed to provide a sample when demanded. TF contested and indicated that, given the lack of instructions, he tried his best to provide samples on the 6 occasions. TF’s evidence as supplemented by an expert report from forensic alcohol expert, Nizar Shajani, who indicated in his expert report that, according to the report that the officer had prepared for the SMV, the officer had made several and various mistakes in her use of the ASD . The expert report commented that what the officer said occurred regarding her use of the ASD could not possibly have occurred in a properly functioning ASD. Decision: “I am not satisfied that [TF] failed to comply with an ASD demand. As a result of my findings I revoke your driving prohibition, monetary penalty and vehicle impoundment as required by s. 215.5(4) of the Act.” Driving prohibition revoked, no fines imposed, towing and storage fees paid by the SMV (September 2013).
