R. v. Dipinto, 2017 ONCJ 746

Court File and Parties

Court File No.: Central East - Newmarket 4911-998-16-03902 Date: 2017-11-08 Ontario Court of Justice

Between: Her Majesty the Queen — and — Lucinzia Dipinto

Before: Justice P.N. Bourque

Counsel: T. Hamilton, for the Crown L. Rebick, for the defendant

Reasons for Judgment

Released on November 8, 2017

BOURQUE J.:

The Facts

1A police officer, on two occasions in the morning of May 20, 2016, met the defendant operating a motor vehicle. On the first occasion, (at 02:57) the officer detected no signs of alcohol consumption and let the defendant proceed. At 04:35, in response to a civilian complaint, the officer had occasion to meet with her again and at that time, having a reasonable suspicion that she had alcohol in her body, he demanded a roadside test, which the defendant failed. The defence asserts that as this has become a Toxicologist case, then the crown is unable to satisfy its burden to prove beyond a reasonable doubt that this defendant did not engage in bolus drinking within 15 minutes before her arrest.

Richard Russo

2…is a York Regional Police officer of some two years' experience. He was dispatched to a call at the Britannia pub at approximately 02:57 and saw two intoxicated men in a parking lot and a woman driving a grey Toyota SUV. He spoke to the woman driver (the defendant) but she showed no signs of alcohol consumption and he left the scene shortly thereafter. At approximately 04:35 he was approached by a driver of a pick-up truck who directed him to the Grey Toyota SUV at a McDonalds drive thru. The civilian said that the woman was "drunk". The officer investigated.

3He spoke to the defendant and could smell an odour of alcohol she was alone in the SUV. She admitted to drinking a beer. He made an ASD demand. She provided a suitable sample which was a fail. She was arrested for driving with excess alcohol at 05:00. She was handcuffed and placed in the rear of the cruiser. The officer, while waiting for a female police officer to search the defendant, found a three-quarter full cup of a drink which smelled of alcohol, in the centre console of the defendant's SUV. In cross-examination, he admitted that there could have been less alcohol in the cup, maybe half a cup. The cover to the console was closed. He also testified that from the time he saw her at the drive thru, he never saw her take a drink.

4On the way to the station, the defendant was very talkative, and wanted the police officer to let her go home to see her daughter. She was upset that he did not do so. She did not speak of her alcohol consumption that evening.

5The officer took her to the station where she went to the bathroom. He attempted to put her in touch with her counsel but he did not return the call. The defendant then spoke to duty counsel before being turned over to the breath tech. The breath tech certificate was filed in evidence and disclosed that at 07:02 she had breath readings of 170 milligrams of alcohol in 100 millilitres of blood, and at 07:24 she had breath readings of 150 milligrams of alcohol in 100 millilitres of blood.

6The Crown also tendered into evidence the toxicologist's report indicating that at the time of last driving, the defendant had a blood alcohol reading of between 155 and 220 milligrams of alcohol in 100 millilitres of blood. The report was based upon the four presumptions, one of which was "no consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident". The toxicologist also opined that a large amount of alcohol is some five to seven fluid ounces of alcohol within the 15 minutes.

Jason Rajpaulsingh

7…is the breath technician. The video of his interaction with the defendant was played in court. The important sections of the conversation are set out below (this is a summary of the relevant parts of the interview):

Question	Response
Operating a car?	Yes, I was.
Driving to?	I dropped someone off and then I went to McDonalds for breakfast.
When did you start to drive?	Britannia bar and the owner called because people and police came and officer that escorted me and he was an officer there, I went to my house and then drove my friend home. But I did not stop in between. Not sure what happened there.
Do you know approximately what time you started to drive?	I think 1:30 approximately, not sure when I was just sitting and talking to someone at the bar, so I'm not sure.
Have you consumed alcohol?	Alcohol earlier, earlier I consumed some alcohol earlier at Britannia.
What had you been drinking?	Two, I had two glasses of wine and some soda water. I did not eat probably at 9:00 or 8:00 o'clock.
What quantity?	I think two maybe 5 ounces of wine?"
Where were you drinking?	Drinking at Britannia, yes.
So what roughly time was first drink?	I think at like 12:23 if I am not mistaken. I drink really slow so.
When was last drink? What time did you stop drinking in total?	About 12:30 or 12:45 I stopped drinking in total and that is when she told me I had to stop drinking and it was 12:45. I didn't stop before that but she told me I had to finish the drink before 12:45.
Britannia was the last place you drank, right?	Uh-hmm.

8As I review the video, the defendant seems to be cooperative and indeed lucid throughout her interview with the breath technician. Specifically, in response to all of the above questions, she seems to consider her answers and then gives an answer. She adds information where she feels it would be useful. There is no reason for me to doubt the veracity of anything that she said to the officer.

9The defence argues that the defendant is an unreliable witness and points to the fact that she was argumentative with the police officer when first arrested and placed in the cruiser, and that she changed her story initially about what she had to drink (from beer to wine). I do not think these issues impinge on the credibility of the answers given to the breath technician. At the time of the interview, she had received legal advice. As I have already noted, she appeared lucid and cooperative. The greatest source of her belligerent behaviour in the cruiser seemed to center around her concern for her daughter. By the time of the breath tech interview, that issue seemed to be behind her.

Defence

10The defendant called no evidence.

Can the Crown Rely Upon the Toxicologist Report?

11The breath tests were taken more than two hours after the last driving and thus the Crown has filed a toxicologist report, as it cannot rely upon the presumption of identity. As stated above, the report is based upon the condition that there was no bolus drinking.

12The defence asserts that the following combination of factors raise the issue of bolus drinking to more than mere speculation and indeed, would lead a trier of fact to have a reasonable doubt as to whether the Crown has proven that there was no bolus drinking in this case.

13At 02:57, the defendant was interviewed by the officer and he could not smell alcohol on her breath and there were no signs of impairment.

14At 04:35, the defendant was interviewed by the same officer and he could smell a slight smell of alcohol (still no signs of impairment).

15At 07:00, the defendant smelled strongly of alcohol in the breath room (while still showing no signs of impairment).

16In her vehicle at 04:35 there was in the center console, a cup with a brown alcoholic liquid. The cup was anywhere from half to three-quarters full. The cup was not in a cup holder and the officer stated that he would not have put a coffee cup in that position.

17The Crown asserts that the following further evidence is sufficient to convince the trier of fact beyond a reasonable doubt that there is no drinking of large amounts of alcohol within 15 minutes of the last driving:

(a) The defendant appeared to be belligerent and uncooperative when first arrested and then (about two and-a-half hours later) was cooperative. I agree this could be some evidence of a decreasing blood alcohol level, it could also be the result of specific factors, (i.e. No longer a concern about her daughter) and also she may have developed a tolerance to the intoxicating effects of alcohol. I thus give this very little, if any, weight;

(b) The defendant's smell of alcohol was rising. This I also do not find terribly helpful as the officer smelling at the roadside did so for a short period of time as opposed to the breath technician who was sitting across from the defendant for a longer period of time and the defendant was doing a lot of talking and indeed, blowing strongly into a Intoxilyzer machine. Again, I give this little or no weight, and by the same token, I give little weight to the defendant's assertion that the differing smells at different times assist in raising a reasonable doubt;

(c) There is a common inference that people do not drink large quantities of alcohol just before and during driving and especially in this situation where she has been out for a long time and is at the McDonald's drive thru in the midst of ordering breakfast;

(d) During the interview with the officer, the defendant answered some six different questions, where the issue of drinking a brown alcohol in her car within 15 minutes before 04:35 could have been alluded to by the defendant. When given the opportunity, the defendant spoke of drinking only at Britannia pub, and finishing drinking before the first stopping. She spoke of only drinking wine at Britannia pub. She describes her last drink at 00:45 or so. In terms of quantity, she states two five-ounce glasses of wine. Even if I find the quantity hard to accept, it may be put down to some minimization. Nothing in her response to any of these questions supports any inference that she may have engaged in bolus drinking.

18The question is whether based on the totality of all of the above evidence, I can be convinced beyond a reasonable doubt that the defendant did not drink a large quantity of alcoholic beverage within 15 minutes prior to the incident. I find that I can be so convinced, notwithstanding the presence of the opportunity to consume alcohol (the cup in the centre console). I find that this opportunity does not go beyond mere speculation, especially since I have her own evidence that she did not engage in any such activity, when given the opportunity to do so. A trier of fact may accept none, part, or all of a witnesses' testimony. I find that many times she could have given some evidence of bolus drinking, but chose not to do so, gives weight to my belief that in answer to these questions, she was indeed telling the truth.

Conclusion

19Having made that finding of fact, I find that all the pre-conditions of the toxicologist's report have been proven and therefore I accept the conclusion that at the time of the last driving of this defendant, she had a blood alcohol level of between 155 and 255 milligrams of alcohol in 100 millilitres of blood. She will be found guilty of the offence as charged.

Signed: "Justice P.N. Bourque"