RSBC v. BM — IRP APPEAL – SUCCESSFUL – REFUSAL OF ASD – POLICE INDICATED DRIVER PRETENDING TO BLOW THREE TIMES AND DEEMED REFUSAL – CONFLICTING POLICE EVIDENCE IN EXACTLY WHAT STATUS MESSAGE DIGITALLY APPEARED ON APPROVED SCREENING DEVICE READ-OUT DURING ATTEMPTS — DRIVER INDICATED HE MADE EARNEST ATTEMPTS TO PROVIDE BREATH SAMPLES – NO FAILURE OR REFUSAL TO COMPLY WITH DEMAND — PROHIBITION REVOKED
Facts: Just past 8:00pm the driver, BM and his admittedly drunk passenger were stopped by the police officer, Cst. S., after BM’s vehicle made a suddenly swerve over the line and then swerved back without signaling. An odour of liquor and cardamon was determined to come from BM, who was also observed to stumble out of his vehicle. BM indicated to the officer he had one drink at 10:00am. A demand was made for breath samples into an ASD. BM’s passenger was drunk and obnoxious towards Cst. S. who called for back-up which arrived within 2 minutes. Allegedly the backup police officers saw everything that happened during the breath sampling. Cst. S and the other 2 officers wrote reports that indicated that BM was merely pretending to blow, puffing his cheeks and not providing ANY air into the ASD. Cst. S. indicated that the ASD device digitally read “NO GO” on the first two samples. One of the back-up officers indicated that BM was pretending to blow and the ASD did NOT read “NO GO”. Cst. S. advised BM that pretending to blow would be a refusal and allowed BM one further attempt which he deemed to be a “pretend blow” and he therefore deemed a refusal. At the IRP oral appeal hearing BM presented an affidavit showing that he had a flu and drank a Hindi flu remedy (which had alcohol in it) at 10:00am. BM further indicated that his passenger was extremely drunk and it was his passenger that pulled the steering wheel causing the “swerve” noticed by Cst. S. BM indicated that he was eating cardamom all day to settle his stomach and did not smell of alcohol. BM indicated that he was earnestly attempting to provide breath samples on all three occasions. BM indicated that Cst. S. did not provide him with proper guidance or instructions on how to blow in the ASD at any time and that he had never blown into an ASD BEFORE. An ASD forensic expert report from Nizar Shajani was produced on the IRP appeal. Mr. Shajani who is an expert in the use and operation of ASD device used by Cst. S. (the Alco-sensor IV DWF) indicated that it was impossible for the ASD to have produced a “NO GO” reading (as Cst S. suggested) unless SOME air was being introduced into the ASD. This refuted Cst. S’s evidence that NO AIR was introduced into the ASD and had the effect of making Cst. S look to be either mistaken or not credible about his operation of the ASD device he used with BM. Counsel Jamie Butler, argued that Cst. S’s evidence was wrong or mistaken and that valid attempts were made by BM on each occasion Decision: “When considering all of the evidence before me, I find that you did not fail or refuse to comply with the demand”. Driving prohibition revoked, no fine imposed, all towing and impound were fees paid by the RSBC. (November 2014)
