The appellant, Robert Swihart, appealed his conviction for operating a motor vehicle with a blood alcohol concentration in excess of 80 mg, contrary to s. 253(b) of the Criminal Code.
The appeal challenged the trial judge's reliance on a forensic toxicologist's expert opinion, arguing that the Crown failed to establish the absence of bolus drinking (large quantities of alcohol consumed shortly before driving) or post-offence drinking (alcohol consumed after driving but before breath tests).
The appellant contended that evidence of an empty beer bottle near his vehicle and his observation drinking from a Listerine bottle constituted "evidence to the contrary," precluding a common-sense inference.
The court found the trial judge's inferences were reasonable and supported by the evidence, noting that one beer bottle would not necessarily amount to bolus drinking, and there was no evidence the mouthwash contained alcohol.
Furthermore, the appellant's admission of no alcohol consumption an hour prior to the officer's arrival was direct evidence the trial judge could rely upon.
The appeal was dismissed.
