The Recipient of a roadside suspension was found at 4 am slumped over his steering wheel. The officer issued a immediate roadside sanction after the Recipient provided a breath sample failure after his 15th attempt. The sample provided showed he had alcohol in his body beyond the legal limit. The Recipient requested a roadside breath sample appeal but failed to provide a suitable sample within 3 attempts.
Nature of Argument
Given it took 15 attempts to provide the first suitable sample the failure to provide a sample within the subsequent 3 cannot be considered a opportunity to a roadside appeal.
Ruling
I have difficulty accepting how the Recipient would have been able to pinpoint or recognize the difference in his acceptable sample versus his numerous other attempts, especially if there was a period of 6 minutes between the timing of his suitable sample and his attempts associated with the roadside appeal test. Considering the lack of any evidence at all regarding any advice or guidance offered …I find the Recipient would have required additional attempts to recreate his same breath pattern that resulted in his first suitable sample.
I am satisfied that the Recipient requested a roadside appeal, but the circumstances present did not afford him an opportunity to do so. (His license was returned).