The Crown appealed an acquittal on an excess blood alcohol charge, arguing the trial judge misapplied the legal test governing whether breath samples were taken as soon as practicable and misapprehended the evidence about the booking process.
The appeal court held that the trial judge correctly stated and applied the governing principles requiring proof beyond a reasonable doubt that the police acted reasonably throughout and obtained the samples within a reasonably prompt time.
On the evidentiary record, including ambiguity surrounding a 22-minute period before the first test, it was open to the trial judge to find the presumption of identity unavailable.
The acquittal was upheld and the appeal was dismissed.
