Officer’s policy to wait 15 minutes before administering the ASD meant sample of breath was not taken “forthwith” as required by ss. 254(2)(b) CC

R. v. Lomenda 2014 SKQB 77 – this case was an appeal by the defence from a conviction of driving while his blood alcohol content exceed 80 milligrams in one hundred millilitres of blood. He appealed that conviction on the basis that evidence obtained as a result of the use of an approved screening device (an “ASD”) pursuant to s. 254(2) of the Criminal Code should have been excluded, as the sample of his breath was not taken “forthwith” as required by ss.254(2)(b).

The officer stopped the vehicle to check the accused’s driver’s licence, vehicle registration, and sobriety. The officer approached the driver’s side window, and asked the driver for his driver’s licence and registration. The officer put his head into the driver’s window, toward Mr. Lomenda, and asked him if he had been drinking alcohol. Mr. Lomenda responded: “Just one”. The officer said Mr. Lomenda was looking sleepy and asked whether he had more than one drink. Mr. Lomenda answered “no”, and when asked why his eyes were red, replied: “My eyes are always red”.

The officer asked him to step out of the vehicle, and to come back to the space between the two vehicles. He then asked Mr. Lomenda, further, about his drinking, and Mr. Lomenda responded: “I had one about 15 minutes ago”, and then denied drinking other alcohol that day. When asked if he was feeling ill, he said he was “not feeling great”, and, when asked about medication, said he was taking dilantin. Mr. Lomenda further admitted that he was drowsy. The officer told Mr. Lomenda to come with him to the police vehicle to take a roadside test. There was a brief discussion about whether Mr. Lomenda had taken an Approved Screening Device (ASD) test before and then the officer read the ASD demand to Mr. Lomenda.

Mr. Lomenda said he understood the demand. The officer then asked: “You said you had your last beer 15 minutes ago, could it have been sooner?” Mr. Lomenda responded: “Well, possibly, I don’t know, I wasn’t timing it.” The officer then said he was going to wait 15 minutes. Mr. Lomenda told the officer that he was at his parents’ place and that he “had more than one”. When the officer suggestted he looked sleepy, Mr. Lomenda said: “My eyes are always red”. The officer then asked: “How many did you have?” Mr. Lomenda responded: “About four over a two hour period”. The officer then asked when his last drink was, and Mr. Lomenda said: “Forty-five minutes before you stopped me.” The officer presented the ASD to Mr. Lomenda approximately 13 minutes after the demand was read and a fail reading was obtained approximately one minute later.

The officer testified that it was “standard procedure” to wait 15 minutes before taking the ASD test due to the fact that he thought it necessary to observe the accused for that period, to ensure that he did not burp or regurgitate alcohol. He was concerned about obtaining a false positive result due to the presence of mouth alcohol and he was sceptical about whether Mr. Lomenda, like others he had stopped in his career, accurately recalled when his last drink was and believed that Mr. Lomenda’s last drink could have been less than 15 minutes before being stopped.

The Trial Judge originally ruled in this case that the officer’s subjective belief that it was necessary to wait 15 minutes from when he came to believe Mr. Lomenda had alcohol in his body, to avoid a false positive reading on the ASD, was reasonable because: (1) Mr. Lomenda admitted that it was possible he had his last drink less than 15 minutes before and further admitted he wasn’t keeping track of when his last drink was; and (2) the officer’s scepticism that Mr. Lomenda accurately recalled when his last drink had been was well founded as, during the waiting period, Mr. Lomenda changed his version both on how much he had consumed that day -increasing this to four over a two hour period – and on how long it had been since his last drink – increasing this to forty-five minutes before he was stopped.  As such, the Trial Judge ruled the officer was justified in waiting a total of 15 minutes before administering the ASD.

The appeal Judge in the SKQB said it is clear that a police officer is entitled to wait 15 minutes if the delay is reasonable or justified. In particular, the officer can delay if there is evidence which leads him to conclude that the motorist consumed alcohol within that period: see R. v. Bernshaw, [1995] 1 S.C.R. 254, [1994] S.C.J. No. 87 (QL), at para. 70. It does not follow, however, that it is acceptable to wait 15 minutes in every case. The SKQB cited Bernshaw:

In my view, a police officer cannot delay the taking of a breath sample, when acting pursuant to s. 254(2) of the Criminal Code, unless he or she is of the opinion that a breath sample provided immediately will not allow for a proper analysis of the breath to be made by an approved screening device. The officer is not required to take a sample that she or he believes is not suitable for a proper analysis. The expression “proper analysis” incorporates an element of accuracy…. If there are facts which cause the officer to form the opinion that a short delay is required in order to obtain an accurate result, I think that the officer is acting within the scope of the section in delaying the taking of the breath sample. In such a case, as I indicated earlier, I do not think that it matters whether the officer postpones making the demand or postpones administering the test after having made the demand.

The SKQB viewed that the learned trial judge’s conclusion as to the reasons that the officer waited 15 minutes before administering the ASD disclosed a palpable and overriding error. The officer’s evidence was clear and he repeatedly confirmed that he decided to wait 15 minutes due to the fact that he thought it necessary to observe Mr. Lomenda for that period, to ensure that he did not burp or regurgitate alcohol, and he continued to wait the 15 minutes even after being told Mr. Lomenda did not have a drink for 45 minutes. The SKQB also said that the officer did so because he does not trust motorists in general – as opposed to Mr. Lomenda in particular – to accurately report when they last had a drink, and that mouth alcohol might also be present for that reason.

With respect, said the Honourable B. Barrington-Foote J. of the SKQB:

“It is my view that the ASD was not administered forthwith. [The officer] had no reason to and did not believe that Mr. Lomenda had burped or regurgitated alcohol. Indeed, he did not give evidence that he suspected that mouth alcohol might be present. Rather, he delayed because he concluded that the only way to know was to wait 15 minutes, and observe Mr. Lomenda throughout, and because any motorist might have had a recent drink, and lie about it.”

The Judge said that was not sufficient to meet the standard established to justify a delay based on the “exigencies of the equipment”. There have to be “facts which cause the officer to form the opinion that a short delay is required in order to obtain an accurate result”. In this case, the officer did not form such an opinion on the basis of the facts. He pursued a standard practice that he generally pursued, based on his understanding that the proper procedure was to observe the motorist for 15 minutes to ensure he did not burp or regurgitate, and his distrust of motorists in general. If a police officer can wait 15 minutes for those reasons, he or she would be entitled to do so in every case. That is not the law. Such a conclusion would be inconsistent with the requirement for immediacy which is the basis for the constitutional integrity of s. 254(2).

Accordingly, the SKQB found that Mr. Lomenda’s rights pursuant to ss. 8, 9 and 10(b) of the Charter were infringed as a result of the failure to administer the ASD forthwith and the court concluded that the evidence must be excluded, as its admission would tend to bring the administration of justice into disrepute. The defence appeal was allowed and given that there was, absent the Intoxilyzer evidence, no evidence to support a conviction, the judge directed that a verdict of acquittal be entered.

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