Facts: At 4:38 am the police came across a two vehicle accident that had occurred at 4:20 am. YE admitted fault to the police for the mva but was noted to have slurred speech and an odour of liquor on his breath. YE denied having anything alcoholic to drink at all that night. The police demanded breath samples and ended up taking three breath samples from YE, at the following times: 4:55 am, 5:12 am and 5:24 am. Normally there would be only two breath samples taken in these types of situation. The three breath samples were taken on three separate ASD units. The first sample and third breath samples registered a “FAIL” but on the second sample the officer reported in his sworn statement that the “ASD did not work properly”. There was some indication that the ASD result of the second sample read “WARN”. The drinking pattern of YE was measured by the forensic alcohol expert’s report making the probable BAC result of all three samples to be in the WARN range (under 60 mg%) rather than the FAIL range (over 100 mg%) at the time of the mva (4:20 am), but then closer to the FAIL range at the time that the test were actually performed (4:55 am and 5:12 am) on YE. Decision: “I find that the ASD was not reliable”. Driving prohibition revoked, no fines imposed, towing and storage fees paid by the SMV. (June 2013).
