Driving while intoxicated has been illegal in Canada since 1921, and the ‘modern’ version of this rule—the three distinct offences of impaired driving, driving with a blood alcohol concentration (BAC) of over 80mg per 100mg of blood, and failing or refusing to comply with a demand to breath test for BAC without reasonable excuse—for roughly the past 40 years. In this time, impaired driving case law has grown to include almost every nuance of interpretation for every possible set of facts.
Almost is, of course, an important qualifier. A recent case arising out of an incident that occurred in the early hours of April 26, 2014 in Cambridge Bay, Nunavut further comments upon the meaning of refusing to comply with a demand to breath test for BAC, and underscores the evidentiary burden on the police and crown prosecutors in investigating, charging, and proving impaired driving criminal offences. The following has been obtained from online news sources:
The accused driver acknowledged having consumed three ounces of vodka and prune juice earlier in the evening. Afterwards, while driving straight down the road despite first his left and then his right indicator lights being activated and then veering into the middle of the road, he was stopped by two RCMP Constables.
The Constables testified that when the accused got out of the vehicle at their request he appeared to sway and stumble, his eyes were glazed, and his breath had a hint of alcohol. He said his turn signal indicators did not automatically turn off after a turn, that he had veered to avoid a rough patch, and that he stumbled because he was wearing flat rubber slippers on an icy ground.
Under arrest and while waiting at the police station for breath testing, the accused began deep breathing exercises and squats. Twice when instructed to blow and keep a firm seal around the mouthpiece, he blew, but the device registered an insufficient sample. The court was told the accused appeared to blow most of the air out of the corner of his mouth, and seemed “cocky and arrogant,” even resuming his deep breathing and squats between attempts.
Before the third attempt, the accused was warned that failing to provide a sufficient sample would result in charges. After the same result—no useful sample—his request to try again was denied and he was charged with impaired driving and failing to provide a breath sample.
The trial judge acquitted the accused on both charges. Although noting that the accused had not made a “bona fide” attempt to provide a sample, the key fact was that he had asked for another chance and not been told explicitly that his third attempt would be his “last chance.” “Such a warning is required where an accused, as here, indicates a willingness to comply, but fails, intentionally or not, to successfully provide a sample. [But]… officers are [not] required to endlessly administer tests to non-compliant suspects. Three is clearly enough,” the judge ruled.
With respect to the accused’s acknowledgment of his earlier alcohol consumption, the judge also ruled that the accused’s testimony left a reasonable doubt about whether he was impaired.