The Applicant was issued an immediate roadside sanction after being deemed to be driving impaired by alcohol. The Applicant testified he was advised that he could participate in a roadside appeal by providing a breath sample. He maintained he was not impaired. He made 10 failed attempts at providing a breath sample.
Nature of Argument
The officer’s report did not provide any information on how to provide an adequate sample of breath or any details on what the Recipient was doing wrong. There was an obvious language barrier as well. Counsel argues the indicia of impairment noted by the police can be explained considering the Recipient is new to the country, only recently obtained his learner’s licence, has only driven twice, and was uncomfortable speaking with and dealing with the police. Counsel also argues the officer does not suggest in his report that the Recipient was not trying to provide a sufficient sample either. The Recipient simply did not know what he was doing wrong to ensure an adequate sample was provided.
Ruling
An investigating officer is obligated to fully and accurately record all relevant evidence, both inculpatory and exculpatory, in detail, and here he has not done so. In my experience, the evidence an officer provides regarding the breath testing is usually more detailed than what I have in evidence for this Review. A fulsome report will often detail the reasons as to why the Recipient was unable to provide a sufficient sample, such as that the driver was blocking the straw with their tongue or teeth, sucking instead of blowing air, or that the driver was blowing so lightly that the ASD, failed to register any airflow. In this case, there is no information at all. The only information I have about the breath testing is from the Recipient indicating he was trying his best to provide an adequate sample of breath.
I cannot find on balance that the officer provided the Recipient with a meaningful opportunity to undergo a test. (His license was returned).