The accused was charged that on the 12th day of December without reasonable excuse he failed or refused to comply with a demand to provide a breath sample in an Approved Screening Device (Approved Screening Device) Contrary to s.253(2) Canadian Criminal Code.
Officer Humphries stopped the defendant pursuant to a Ride Program. Upon approaching the officer, the defendant stopped his vehicle momentarily before proceeding through to the officers.
The officer asked the defendant if he consumed any alcohol to which, according to the officer, the defendant stated “possibly a lot”. As a result of this admission and the initial hesitation of the defendant, the officer stated he formed a reasonable suspicion that the defendant had alcohol in his body.
At 11:01 pm the approved screening device demand was given and at 11:036 pm the officer explained how the device operated and gave a demonstration of the same. An in-car video captured much of the defendant’s actions and conversation with the officer.
The officer had satisfied himself that the Approved Screening Device was in proper working condition, had ensured it was calibrated properly, and had used it without difficulty at least five times earlier that evening. From 11:01 pm to 11:04 pm, four breath samples were given by the defendant.
According to the officer, the samples were insufficient to get a reading as the defendant would stop prematurely. The defendant stated he was “trying to keep going”, and later “let me try again”. The officer stated to the defendant after the third failed attempt, “We’ll just keep going till we get one then”. According to the officer, the defendant “was right on the cusp” of giving enough breath.
I observed that the defendant appeared to blow for three to five seconds before he would stop. He would inhale before giving a sample. The officer commented after one attempt that the defendant was on the verge of giving sufficient breath to register a reading.
The officer would cheer the defendant on as breath was entering the machine and would tell the defendant that he was stopping prematurely and that he knew the defendant had more breath when he stopped.
A fourth sample was given. It appeared to be longer (approaching five seconds). Again, a similar attempt was made and nothing registered. The defendant asked, “Why is this happening, I’m blowing!” The defendant was warned if he did not provide a proper sample, he would be charged with “refusing to provide a breath sample”.
The defendant replied, “I refuse?” “I’m drunk?” Obviously denying the officer’s suggestions. He then stated, “Did I not blow five times? You’re saying I’m drunk?” After a short exchange he then told the officer “to place me under arrest” – “take me to the hospital” then said, “Fine, I’ll blow again”.
Again a discussion between them occurred where the defendant stated he could not blow harder than he had. He stated that he did no refuse to blow and that he had tried five to seven times to provide a “big breath”. He argued with the officer who suggested to him that he could indeed give a longer sample.
The defendant became frustrated at this point and stated he refused to blow. The officer had the defendant repeat himself and thereafter he arrested him at 23:10. While the defendant was given his Rights to Counsel he appeared to be somewhat incredulous stating – “you say I refuse to blow! I did not refuse to blow… I blew seven times”. Then at 23:16 he asked the officer, “Do you want me to blow again?” to which the officer replied, “no, you don’t have that option.”
The defendant remained with the officer from 11:16 pm to 12:03 am when he was served with the 90 day suspension.
During this time, the in-car video shows that at various times the defendant would state that “I did not refuse to blow”. He offered to go to police station for a breath test or to the hospital. At 23:50 he stated “I never said I refused”.
The officer testified that he thought the defendant was “playing around” as he never gasped or otherwise gave any outward indication of difficulty. According to him, the defendant stopped blowing intentionally as he could begin talking immediately after his attempts without breathing in beforehand.
This would not be possible, according to him, if he was trying the best he could. He further acknowledged that he understood the defendant to offer “to do it again” at 23:16.