Court Information

Court File No.: Toronto Region, Metro North Courthouse Date: 2012-10-30 Ontario Court of Justice

Between: Her Majesty the Queen — and — Vitaliy Chupryna

Before: Justice Carol Brewer

Heard on: September 1, 2011, January 4 and April 18, 2012

Reasons for Judgment released: October 30, 2012

Counsel:

• Christine Lund, for the Crown
• Ernst Ashurov, for the defendant, Vitaliy Chupryna

Reasons for Judgment

Introduction

[1] Vitaliy Chupryna is charged, that on August 23, 2010, he operated a motor vehicle with a blood alcohol concentration above the legal limit; and that he breached a probation order, requiring him not to drive unless he was licenced to do so.

[2] These charges arise out of a vehicle stop for a RIDE spot check. Four issues are raised for determination:

• Did the police fail to wait 15 minutes for residual mouth alcohol to dissipate before using the approved screening device?
• Was the device used at the police station to test the defendant's breath an approved instrument?
• Was the defendant's blood alcohol level "over 80" at the time that he was stopped?
• Has the Crown proven the breach of probation charge beyond a reasonable doubt?

The Fundamental Principles

[3] In this case, Mr. Chupryna is presumed to be innocent, unless and until the Crown has proven each essential element of these offences beyond a reasonable doubt.

[4] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence.

[5] It is not enough for me to believe that the defendant is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.

[6] In weighing the credibility of the witnesses in this case, I remind myself of the principles articulated by the Supreme Court of Canada in R. v. D.W., 63 C.C.C. (3d) 397.

Residual Mouth Alcohol

The Relevant Evidence

[7] On August 22, 2010 at about 11:39 p.m., Constables Cohen and Nanton were part of a group of officers detailed to set up a spot check on Finch Avenue West, near Chesswood Drive. They began stopping cars at 11:58 p.m. At 1:10 a.m. on August 23rd, Constable Cohen stopped a car driven by the defendant. The officer asked Mr. Chupryna whether he had consumed any alcohol that night. Constable Nanton testified that the defendant responded, "Yes, one beer." When the officer asked how long had it been since he drank the beer, Mr. Chupryna answered that he did not remember. Given the odour of alcohol on the defendant's breath, his glassy eyes and the admission of drinking, the defendant was directed to a safe location nearby, where a roadside screening demand was made. A 'fail' result was registered on the device, which Constable Cohen showed to Constable Nanton. Mr. Chupryna was arrested by Constable Nanton, given his rights to counsel, cautioned and an approved instrument demand was made. The defendant was taken to the police station, where he was given an opportunity to speak with counsel before samples of his breath were taken.

[8] Mr. Chupryna testified that, on August 22, 2010, he spent the day with his girlfriend looking for an apartment. Their search was unsuccessful because the apartments they saw were very expensive. The couple had coffee with friends and then went to dinner at a Korean restaurant. During dinner they had an argument, as the defendant's girlfriend, Alona Sira, wanted an apartment that the defendant could not afford. Mr. Chupryna drove his girlfriend home and they argued in her parking lot for 10 to 15 minutes. Ms. Sira testified and generally confirmed the defendant's evidence.

[9] On his way home, the defendant decided to go to a strip club. He arrived at Charley T.'s, near Finch Avenue West and Chesswood Drive, at about 11:00 p.m. The defendant had consumed no alcohol before arriving there. Mr. Chupryna ordered three shots of vodka, each about one ounce and, later two 20-ounce glasses of draft beer. At about 1:00 a.m. the defendant received a phone call from his girlfriend. After Ms. Sira apologized, Mr. Chupryna decided to go to her apartment and pick her up. The defendant had not consumed the second glass of draft beer at the time of the phone call. He drank the 20-ounce glass of beer in about 5 minutes. Mr. Chupryna paid cash for his drinks and did not get a receipt.

[10] Constable Cohen stopped Mr. Chupryna about two minutes after he left the strip club. The defendant agreed that he told the officer that he drank one beer. Mr. Chupryna admitted that he lied to Constable Cohen because he was scared. The defendant knew he had had too much to drink and that he should not have been driving. According to Mr. Chupryna, when the officer asked when he had the beer, he said "not a while ago, just now."

[11] Ismail Moftah, a forensic toxicologist, testified that the 'fail' result registered on the roadside screening device could have been the result of mouth alcohol, which lasts about 15 minutes, as well as the alcohol in the defendant's body.

[12] In reply, Dr. Daryl Mayers, testified that mouth alcohol is a possible mechanism that can cause false positive results on an approved screening device. A strict protocol has been developed that, before administering a roadside screening test, the officer should wait 15 minutes before administering the test, if the officer suspects that there has been recent alcohol consumption. However, Dr. Mayers commented that scientific literature suggests that beer may take about 10 minutes to evaporate from the mouth.

Analysis

[13] A police officer who has made a demand under section 254(2) must administer the test forthwith, unless there is reason to briefly delay the test in order to ensure an accurate result. There is no requirement that an officer inquire as to when a driver last consumed alcohol before performing a roadside screening test. Further, the mere possibility that a driver has consumed alcohol within 15 minutes of taking a roadside screening test does not preclude the officer from relying on the accuracy of the test results: R. v. Bernshaw, 95 C.C.C. (3d) 193; R. v. Einarson, [2004] O.J. № 852 (C.A.); R. v. Nijjar, [2007] O.J. № 4903 (S.C.J.); R. v. Au-Yeung, [2010] O.J. № 1579 (S.C.J.).

[14] I do not believe the evidence of the defendant that he told Constable Cohen that he had "just now" consumed a beer, nor does it raise a reasonable doubt in my mind. I believe the testimony of the officer. My reasons for this conclusion are:

• Constable Cohen made notes of his interaction with Mr. Chupryna. Had the defendant indicated that he had just consumed alcohol, I am satisfied that the notes would have reflected that statement. The constable had no way of knowing that the defendant had just come from Charley T.'s, and the officer would have had no reason not to include the information in his notes had it been provided. If Constable Cohen had known about the recent nature of the drinking, there is no reason to expect he would not have complied with the 15-minute protocol in which police officers are trained.

• By contrast, the defendant admitted that he was scared about being stopped after consuming more alcohol than he should have when driving. He acknowledged lying to the officer about the amount he drank. In such circumstances, I do not believe that he would be honest about the timing of his drinking.

The Approved Instrument

The Relevant Evidence

[15] Constable McKeon, a qualified technician, testified that during the breath tests performed on the defendant, he used a properly working Intoxilyzer 8000C to take the breath samples. The certificate of a qualified technician and the test records from the device confirm that it is an Intoxilyzer model 8000C that the qualified technician used. The Intoxilyzer 8000C is an approved instrument under the Criminal Code. The serial number of the device was 80-005159. The results of the breath tests were readings of 124 and 123 milligrams of alcohol in 100 millilitres of blood.

[16] Constable McKeon was shown a certificate of calibration for an Intoxilyzer 8000, with serial number 80-005159, which was manufactured by CMI Inc., a subsidiary of MPD Inc., of Owensboro, Kentucky, which was tested and found to be compliant with American standards.

[17] Mr. Moftah and Dr. Mayers both confirmed that the Intoxilyzer 8000 is not an approved instrument, but that the model 8000C is approved in Canada. According to Dr. Mayers, the difference between an Intoxilyzer 8000 and an 8000C is software. Dr. Mayer's report states that there is no analytical difference between an Intoxilyzer 8000 and an 8000C, and that the calibration done by the manufacturer is identical. Further, the calibration of an approved instrument in Canada is objectively tested every time a breath test procedure is performed by way of the external alcohol standard. In this case the results showed that the instrument used by Constable McKeon was accurate and reliable.

Analysis

[18] Like Duncan J. in R. v. Almeida, [2012] O.J. № 2510 (C.J.), I am satisfied by the evidence tendered in this case that the instrument used to test the defendant's breath at the police station was an approved instrument. The unchallenged evidence of the test records and the certificate of the qualified technician, as well as the testimony of Constable McKeon, establish that the device used in this case was an approved instrument. I do not find the description of the instrument as an Intoxilyzer 8000 in the American manufacturer's certificate of calibration to be significant, particularly given the evidence of Dr. Mayers that the calibration done by the manufacturer is the same in Canada and the United States.

The Defendant's Blood Alcohol Reading

The Relevant Evidence

[19] Mr. Moftah testified that a man of the defendant's height and weight who drank alcohol as described by the defendant would have a blood alcohol level of between 50 and 72 milligrams of alcohol in 100 millilitres of blood at 1:10 a.m. when he was stopped by the police. This method of calculation employed a forward (or Carter) calculation. According to Mr. Moftah, a projected blood alcohol concentration of between 38 and 104 milligrams of alcohol in 100 millilitres of blood would be applicable to the time of the first breath test. He attributed the difference between the Intoxilyzer reading and the projection to analytical or instrumentation variability. His calculation would be compatible with the lowest rate of elimination, but not the highest rate of elimination.

[20] Dr. Mayer's calculations included within them the results of the Intoxilyzer 8000C when assessing the last drink scenario. On this approach, the defendant's projected blood alcohol concentration at 1:10 a.m. was between 85 and 95 milligrams of alcohol in 100 millilitres of blood.

Analysis

[21] The expert opinions of Mr. Moftah and Dr. Mayers are dependent upon the facts on which they were premised. If I accept the evidence as to the nature and timing of Mr. Chupryna's alcohol consumption, or at least do not reject it, then I must assess the conflicting expert opinions to determine whether there is a reasonable doubt as to the defendant's blood alcohol level at the time his vehicle was stopped.

[22] Assessed in the context of the evidence as a whole, I do not believe the defendant's testimony on this issue, nor does it raise a reasonable doubt in my mind. My conclusion is based on the following factors:

• the defendant was upset and angry when he began drinking, which is not a state of mind that is conducive to precise recollection of the amount he imbibed;

• Mr. Chupryna's recollection was not supported by a receipt or any other means of refreshing his recollection;

• the defendant lied to the police about the amount of alcohol he had consumed because he knew that he drank more alcohol than he should have before driving;

• the consumption of a second 20-ounce glass of beer in a period of five minutes is inconsistent with the common sense inference that normal people do not ingest large amounts of alcohol shortly before getting into their car and driving: see R. v. Hall, [2007] O.J. № 49 (C.A.); R. v. Bulman, [2007] O.J. № 913 (C.A.). Further, it is inconsistent with the defendant's intention to drive, immediately thereafter, to his girlfriend's residence. It is also inconsistent with Ms. Sira's evidence that usually if the defendant is drinking, he does not drive at all;

• the defendant testified that he never orders shots at a bar, instead he usually drinks beer;

• there is an internal inconsistency between the evidence that the defendant thought he was okay to drive and his testimony that he knew his limit before driving was two drinks and his evidence that he was scared when he was pulled over by the police because he knew he had had too much to drink; and

• As pointed out in R. v. Lima, [2010] O.J. № 3974, bolus drinking involves the consumption of a large amount of alcohol immediately before driving, giving rise to a situation where the driver's blood alcohol concentration at the time she was stopped was below the legal limit, but could register "over 80" at the time of testing as the level of alcohol in the blood was still rising. In this case, the absence of any increased symptoms of intoxication by the defendant as the night progressed is a piece of circumstantial evidence tending to show the absence of bolus drinking.

The Probation Order

The Relevant Evidence

[23] The defendant was found guilty of obstructing a peace officer by Pringle J. on June 23, 2010. He was granted a conditional discharge and placed on probation for 12 months. One of the terms of the probation order required the defendant not to drive any motor vehicle unless he was licensed to do so.

[24] The defendant's driver's licence was suspended for unpaid fines from February 22, 2008 to July 22, 2009. It was suspended for the same reason on June 21, 2010. The suspension was still in effect on August 23, 2010. A notice of the June 2010 suspension was forwarded to Mr. Chupryna at his last known address on the records of the Ministry of Transportation on June 21, 2010 by mail. The address, 119 Patrice Crescent in Thornhill, was the same one on the June 23, 2010 probation order and the one that was provided to Constable Cohen by the defendant on August 23, 2010.

[25] Mr. Chupryna maintained that he did not know his driver's licence was suspended until he was advised of it by Constable Cohen. The defendant said that he did not receive a notice of suspension from the Ministry of Transportation. Mr. Chupryna acknowledged knowing that he had unpaid fines and that he did not follow up on them. The defendant also admitted being aware that if he did not pay the fines his license would be suspended. He agreed that his address was still the same one that was on record at the Ministry of Transportation.

[26] I find it inconceivable that the defendant did not receive a letter that was mailed to him at his own address.

Conclusion

[27] I am satisfied that the Crown has proven both of these charges beyond a reasonable doubt. Accordingly, findings of guilt will be entered.

Released: October 30, 2012

Signed: Justice Carol Brewer

Footnotes

[1] He was qualified as an expert in forensic toxicology and, in particular, in calculations of blood alcohol concentrations, the operation of the Intoxilyzer and approved screening device.

[2] He was qualified as an expert in forensic toxicology and, particularly, in projected blood alcohol concentration, operation of the breathalyzer, Intoxilyzer and the approved screening device.

[3] The defendant's testimony about the amount he drank and his pattern of drinking is set out in paragraph 9.