Client Acquitted: Failing to Provide Breath Sample
Police use sophisticated devices to detect and gather evidence against suspected impaired drivers. The government has designated various roadside breath devices and police station breath instruments as “approved” for collecting breath readings from drivers, and has enacted legislation which makes the results from these devices virtually unassailable. If the machines that police operate are infallible, then how does one defend against an impaired driving or fail to provide breath sample charge which is based on one of these readings? The defence must focus on a target which is always fallible: the memory of the police officer who operated the machine.
In this case, the client was charged with failing to provide a sample into a roadside screening device. He was stopped at a R.I.D.E. program and was eventually ordered to provide a sample into an approved roadside screening device. This is the device that police use to screen potentially impaired drivers. A fail reading will trigger a further investigation in which the driver is brought to a police station where his blood alcohol concentration can be precisely measured through further breath tests.
The investigating officer testified that he gave the client three chances to blow, but that each time the machine gave an “E” error message, which meant that the client was not blowing hard enough or was only pretending to blow. The officer also testified that the client was not forming a proper seal around the mouthpiece, was providing only short bursts, and was blowing air out of the sides of his mouth. He charged the client with failing to provide a breath sample after the three attempts.
The stakes were high because, in addition to a potential lifetime driving prohibition, the client faced a minimum jail sentence of 4 months imprisonment. After all of the testimonial evidence had been tendered, defence lawyer Tyler MacDonald introduced expert evidence which established that the device which the officer was using (the DraegerAlcotest 7410) cannot give an error message of “E”. It can give a message of E0 to indicate that someone is not blowing hard enough, as well as a number of other messages which might indicate a sensor error or some other problem with the machine, but will never simply show “E”.
Mr. MacDonald argued that there was no evidence indicating why the device was not able receive a sample that night, and that if the officer could not accurately recall something as simple as a two-digit reading on a machine then his observations of the client pretending to blow could not be relied on by the court. The trial judge agreed that the expert evidence called the reliability of the officer’s evidence into doubt, and the client was acquitted.