28 Minute Delay Between Breath Tests Not Taken “As Soon As Practicable”

R. v. Burt-Gerrans 2013 ONCJ 410 – Police officer arrested Burt-Gerrans, made breathalyzer demand and administered two tests 28 minutes apart — Second test was not administered as soon as practicable — There was no evidence respecting 13 minutes of delay beyond that prescribed by Criminal Code between tests.

The Certificate of a Qualified Technician that was produced indicated that the first test was completed at 11:10 p.m. Mr. Burt-Gerrans registered 146 mgs of alcohol in 100 ml of blood.  The second test was completed at 11:38 p.m. The result was 144 mgs of alcohol in 100 ml of blood.  The Defence argued that the second breath test was not administered as soon as practicable. There was no explanation for the 28 minute delay between the tests. Therefore, the Certificate of Qualified Technician was not admissible to prove what Mr. Burt-Gerrans’s blood alcohol content was at the time of driving.  The Crown argued that the tests were taken within the 2-hour time limit and that the normal practice is to wait between 17 – 20 minutes between breath tests. The contentious delay in the case at bar was only 8 minutes. Officer Mask acted reasonably and a detailed explanation of every minute was not required.

The Criminal Code states in s. 258 (1) (c):

………..(ii)  each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken

The phrase “as soon as practicable” does not mean as soon as possible. It means “nothing more than that the tests were taken within a reasonably prompt time under the circumstances.” The “touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably” (R. v. Vanderbruggen 2006 O.J. No. 1138 at para. 12).  The Crown does not have to “provide a detailed explanation of what occurred during every minute that the accused is in custody” (Vanderbruggen, para. 13).  However, where there is no evidence to explain a significant delay, the Crown has not discharged its burden to prove beyond a reasonable doubt that the tests were taken as soon as practicable.  The only officer that testified in this case was both the arresting officer and the Intoxilyzer technician. Therefore, the judge said the officer clearly knew the reason for the delay, but he did not give any evidence to explain it (another case to show the importance of legal articulation).

The Court said the unexplained delay beyond the required 15 minute delay prescribed by the Criminal Code was 13 minutes in this case.  The Crown argued there is a normal practice to wait 17-20 minutes between tests.  However, the Judge said, “I do not think that this means that the “accepted” 2-5 minute delay in excess of what the Criminal Code mandates means that these minutes do not count in calculating the total delay between tests. In examining the delay between the first and second test, one does not start counting at 17-20 minutes after the first test; one starts counting at 15 minutes after the first test.”  In the case at bar, there was no evidence with regard to the 13 minutes of delay beyond that which the Criminal Code prescribes between the tests.  In these circumstances, the Judge found that the Crown did not discharge the onus of proving beyond a reasonable doubt that the second test was taken as soon as practicable.  Therefore, the Crown could not rely on the Certificate to prove Mr. Burt-Gerrans’s blood-alcohol level at the time that he was driving.  Since there was no other evidence to prove what it was, he was found not guilty.

 

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Filed under Impaired Driving, Recent Case Law

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