RSBC v. ST — IRP APPEAL – SUCCESSFUL – MOUTH ALCOHOL FROM FRESHLY CONSUMED WINE STILL PREVALENT DURING ASD TESTING AND AFFECTING ASD TESTS — ASD TESTS ACHIEVED WERE NOT A RELIABLE INDICATOR OF ACTUAL BAC BECAUSE THEY WERE PERFORMED WITHIN 15 MINUTES AFTER THE DRIVER HAD CONSUMED WINE – — PROHIBITION REVOKED
Facts: At 7:12 p.m. police officers were conducting a police counter-attack roadblock on a roadway just off Highway #99 in Squamish. The officer witnessed the driver, ST, drive up alone to the roadblock and smelled alcohol from his breath. When questioned the officer indicated in his filed report that ST said that he had “last drank an hour ago”. A legal demand for breath samples was made at the roadside and the driver provided two samples of breath into two separate ASDs with FAIL results on both tests at 7:12 p.m. and 7:15 p.m.. On the IRP oral review the driver testified in an Affidavit that he had been working in the Lower Mainland for most of the day and came home at about 5:00 p.m. He produced a phone record log to show that he had made and received many calls during the day, several of which were to/from his common law girlfriend (DD) who was attending a friend’s birthday party. Between 6:05 p.m. and 7:04 p.m. he made dinner and opened a bottle of wine in another party’s (AB’s) presence and he and AB both had ONE glass of wine from that bottle. DD had phoned ST during his dinner (at 6:41p.m.) to request a ride home from the birthday party and ST agreed to pick her up. When ST finished dinner he drank that last sip of wine from his glass and headed out the door at 7:04 p.m.. Evidence was presented at the IRP oral hearing that the drive from ST’s home to the police roadblock would take 8 minutes. Contrary to the police report, ST testified in his Affidavit that he had told the officer at the roadblock that he had “poured his last drink about an hour ago”. An expert report from Nizar Shajani, forensic toxicologist was submitted showing that ST’s likely BAC would have been within the legal limit but and that FALSE FAIL results could have been achieved by the two separate ASD units used owing to “mouth alcohol” from the wine which was last consumed about 11 minutes from the second FAIL breath sample. Corroborative evidence was presented at the IRP oral hearing from AB and DD in statement form. Decision: “After reviewing all of the evidence before me 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 RSBC. (November 2014).
