Facts: At 3:17 am a police officer observed the driver, LT, drive up to the police roadblock on the Grandview onramp of Highway#1. The police officer requested roadside samples of LT on an approved screening device (ASD). Two minutes after being stopped (at 3:19am) the driver performed a test on an ASD and the result was a “FAIL”. The officer decided to take the driver to the police station for further sampling and possible criminal charges. Two breath samples were taken by a Qualified Breath Technician at the police detachment using a more advanced testing device called an Intox EC/IR II. Those tests were taken at 5:00am and 5:44am and the blood alcohol readings were 120 milligrams of alcohol in 100 millilitres of blood and 110 milligram of alcohol in 100 millilitres of blood. (The legal limit is “under 80 milligrams of alcohol in 100 millilitres of blood”). The police report filed indicated that the driver was observed as “vomiting” and further that the “Driver was vomiting during observation periods”. At the IRP oral appeal hearing an Affidavit was presented from the driver indicating he had consumed alcohol in only modest proportions at a late night sushi bar and had consumed some sushi that made him physically sick. He went to his car for a short while and returned to the sushi bar where consumed a further beer and then departed with his friend as a passenger in his car. On his way home the driver had regurgitated some stomach contents into his throat within 5 minutes prior to the police stopping him and ergo within 7 minutes prior to his ASD test. He further indicated that when he was taken to the police station he threw up on 5 to 6 occasions within 5 to 10 minutes of each breath sample being provided on the Intox EC/IR II breathalyzer. A forensic alcohol expert report from Nizar Shajani was presented at the oral hearing that indicated that, based upon the drinking pattern provided by the driver’s Affidavit the driver’s BAC should have read under 80 milligrams by all the breath testing equipment (ie. on all three tests performed on him). The expert report indicated that both the ASD (Alcosensor IV DWP) and the breathalyzer used at the police station (Intox EC/IR II) can be fooled by “mouth alcohol” and produce falsely high results by failing to detect the “mouth alcohol”. The expert indicated that “mouth alcohol affect” can result from a subject regurgitating or vomiting up stomach contents which may contain alcohol (ie. beer) and breath testing being performed by the police within 15 minutes of same. The expert report suggested that all three breath tests may have been falsely affected owing to the vomiting and regurgitation of stomach contents into the throat of the driver. It was argued at the ADP oral appeal that the driver’s true blood alcohol content was lower than 80 milligrams even though all three tests suggested otherwise. Decision: “Based upon the evidence in its entirety, I am not satisfied on a balance of probabilities that before or while operating or having care or control of a motor vehicle you consumed alcohol resulting in your BAC [blood alcohol concentration] exceeding 80 mgs% within 3 hours or operating or having care and control of a motor vehicle”. Intended driving prohibition revoked, review fees refunded. (September 2014)
