Mr. Starkman

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 mg per 100 mL of blood.

The Crown relied on two breath test results taken at 11:10 p.m. (146 mg/100 mL) and 11:38 p.m. (144 mg/100 mL).

The defence challenged the admissibility of the second test, arguing it was not administered as soon as practicable as required by the Criminal Code.

The court found that the 28-minute interval between tests, with 13 minutes unexplained beyond the mandatory 15-minute minimum, breached the statutory requirement.

The Crown failed to discharge its burden of proving the test was taken as soon as practicable, and the accused was acquitted.

The accused was charged with operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood and driving with an open container of liquor.

The Crown's case rested on ASD test results and Intoxilyzer readings showing BAC levels of 181 and 177.

The defence raised three issues: whether the initial demand was vitiated by re-administration of the ASD test, whether the accused's s. 10(b) Charter rights were violated by failure to re-read rights to counsel before the second ASD test, and whether the initial stop violated s. 9 Charter rights.

The court found that the stop was unconstitutional as it was based solely on the officer's suspicion without objective grounds, resulting in a breach of the accused's s. 9 rights.

Applying the R. v. Grant analysis, the court excluded the BAC evidence and entered acquittals on both charges.