Michael Malleson

The accused was charged with failing to comply with a demand for a breath sample under s. 254(2)(b) of the Criminal Code.

A police officer stopped the accused for speeding and, observing signs of impairment, requested a roadside breath sample using an approved screening device (ASD).

The accused made six attempts to provide a sample, each resulting in an error code indicating an insufficient sample.

The Crown alleged the accused intentionally failed to provide a proper sample.

The defence argued the accused was suffering from a chest cold and cough that prevented him from providing an adequate sample, and that he was attempting to comply with the officer's instructions.

The court found reasonable doubt regarding the accused's intent to fail and acquitted him.