Reasonable Doubt Refuse Breathalyzer Test

On July 15, a RIDE program was set up in the Sheppard/Keele area of Toronto.

The drinking and driving operation had moved to Keele Street south of Steeles when a vehicle driven by the accused approached the area manned by Police Constable Conlan of the Toronto Police Service.

Police Constable Conlan asked the usual question about alcohol consumption that evening and the accused replied “not really” which aroused the officer’s suspicion. The officer questioned the driver further and detected an odour of alcohol coming from the vehicle.

A roadside breathalyzer demand for a breath test was made to the driver, the accused before the court.

The accused was asked to leave his vehicle and walk towards the police car. Officer Conlan observed that the accused did not appear to have any difficulty walking to the police car.

The police officer instructed Mr. M on how to blow into the Approved Screening Device and demonstrated by doing a self test on the roadside breathalyzer. He told the accused to take a deep breath as if he was blowing up a balloon. Police Constable Conlan is shown on a video played for the court making the following statements to Mr. M.

“Take one long breath, take a deep breath, and one long breath. You can’t stop blowing. It has to be continuous breath. You’re stopping. Are you putting your tongue on it or something? Do not obstruct with your tongue. Blow as hard as you can. It’s easy to do. If you don’t blow for me it’s the same as refusing to blow. Blow, blow, blow, you’re stopping. Just relax, take a deep breath. When you hear the tone it means that you’re not blowing into it anymore.”

Police Constable Conlan observed that the accused’s cheeks were blown up “like he was restricting the air. It was as if he was containing all his breath in his mouth”. At 1:02:42 Police Constable Conlan spoke to Sgt. George who was also part of the RIDE operation and told him what was happening, and that the accused was not providing a breath test.

Police Constable Conlan is then heard on the video saying, “you’re blowing at first, but you’re sealing with your tongue or something. We tried five times for you to do the test. Okay, I’ll get you a new one and we will try once more”, referring to a new mouthpiece. “Do you want to stand up, would that be better? If you don’t provide a sample of your breath you will be charged with refusing to provide a breath test. The penalty for refuse breath test is the same as if you fail the test”.

The police officer is heard saying “we want you to pass”. Mr. M at one point says, “I’m trying my best here. I’m going to pass. Let me try again”. Police Constable Conlan continues, … “you’re blowing and you’re stopping. You can talk. It doesn’t take a lot of air for this machine to work.

The encouragement continues and Mr. M is heard stating “that’s as far as I can go. When I blow that’s it”. He is asked “what’s wrong with you sir”? He replies, “I’m a diabetic and I have a problem with sleep apnea”.

The officer replies “You’re not providing a sufficient sample of breath, it’s not hard to do. You just have to blow until I tell you to stop. The last couple of of tries you were close. Blow, blow, blow, blow, blow, no you stopped. Try it again. You’re going to have to provide a sample here or you’re going to be charged with refusing the test. We’re trying to give you as many chances as we can. This must be chance #9.

Police Constable Conlan told the accused that he should not be able to stand, walk or talk if he could not blow for three seconds. Finally an exasperated Police Constable Conlan indicated that there had been eleven tries and that he was going to charge Mr. M with fail to provide a sample.

As it turned out even though Police Constable Conlan indicated on the video that Mr. M had been given eleven opportunities the actual number was sixteen.

During his testimony, Police Constable Conlan indicated that Mr. M did not show any signs of impairment. He recalled having asked the accused to blow through the first mouthpiece tip before it was taken off and he was able to blow through it and it was clear. On cross examination he recalled that on at least five attempts the accused stated “I’m trying my best”. Officer Conlan told the court that if he had believed that the accused was really trying he would not have arrested him for failing to provide a sample.

The accused is a 51 year old gentleman who lists his height at 5’ 5” and weight at 230 lbs. He testified that his job requires a certain amount of bending and lifting. He stated that he puffed his cheeks up to get more air to go into the machine. He told the court that he was trying to cooperate with the police even though he felt that he should not have to do the test.

The defence concedes that the first two elements of the offence have been proven.

That a valid demand was made by Police Constable Conlan and that there was a failure to produce the required sample of breath.

The narrow issue before the court is whether the crown has proven beyond a reasonable doubt that the defendant intended to produce the failure.

The defence provided two cases for the court’s consideration. R. v. Tho Loi, 2012 ONCJ 159 and R. v. Jamaal Westerman, 2012 ONCJ 9. Both of those cases deal with circumstances in which the defendant was not able to provide a suitable breath sample of his breath but could not provide an explanation why. Thoi had a total of 15 to 20 unsuccessful attempts before he was arrested for refuse breath sample. The evidence in the Tho Loi case was that the defendant was blowing softly or sucking when he should have been blowing.

In Wasterman the trial Judge notes that “several attempts were made to get a suitable sample from the defendant” who happened to be an NFL football player. The defendant was described as giving short pulsing breaths rather than the continuous flow required.

In the case at bar I find the following factors to be significant:

• the defendant was co-operative and respectful in his dealings with the police officers,
• the officers had insufficient indicia of impairment to arrest the defendant for impaired driving,
• there was no evidence of bad driving prior to the RIDE stop,
• the officers dealt very appropriately with the defendant
• they encouraged him to keep trying, allowed him to change his position, and demonstrated in my view a remarkable amount of patience,
• the defence of reasonable excuse is not being raised,
• there is no apparent reason indicated on the video or in the rest of the evidence as to why the defendant could not provide a suitable sample,
• the defendant was given 16 opportunities to provide a suitable sample,
• he was advised by the officers that blowing up his cheeks would be counter productive,
• the police officers concluded that he was deliberately trying to frustrate the process.

In keeping with the W.(D) analysis, I do not believe Mr. M when he states that his efforts to provide a suitable sample were sincere and that he was doing everything in his power to comply with the demand. His employment requires him to do some heavy lifting and while he is a man of very stocky build, the task of blowing into the ASD to provide a suitable sample is not an onerous one.

As Justice Duncan stated in the Westerman case, “the inability of the defendant to point to a possible reason makes his case weaker but does not in my view alter the essential nature of the defence”.

And that brings me to the second prong of the W(D) test. I find that although I approach Mr. M’s testimony with a great deal of skepticism, after considering the entire evidence before the court in this case, I am left with a reasonable doubt as to whether his failure to provide a suitable sample of his breath was the result of intentional conduct on his part.

For these reasons an acquittal will follow and the charge is dismissed.

Case Dismissed

Lawyer for the Accused, Nicholas Charitsis

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