The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg under the Criminal Code.
The appeal argued that the trial judge erred in determining that the breath samples were taken within two hours of the appellant last operating the vehicle, thereby improperly applying the statutory presumption under s. 258.
The appellate court reviewed the trial judge’s credibility findings concerning a civilian witness and police officer regarding the timing of events.
It held that the trial judge was entitled to accept portions of the witness’s evidence while rejecting others and that the factual findings were supported by the evidence.
No palpable or overriding error was found in the determination that the breath tests were taken within the required two‑hour window.
