Reasons for Judgment

PUGSLEY, J: (Orally)

The Charge

The defendant, Mr. Bazso, faces a single count of driving with excess alcohol.

Facts

On June 5th, 2012, Mr. Bazso found himself driving a motor vehicle, situated between two O.P.P. police vehicles. As he drove, one of the officers, the one behind, noted a certain degree of inaccuracy in Mr. Bazso's driving which continued for a relatively short time.

When the officer activated his emergency lights to check on the defendant, the defendant did not initially stop. After the officer activated his siren, and the lead police officer his emergency lights, the defendant pulled over without any further difficulty.

Mr. Bazso had alcohol on his breath, and admitted to drinking alcohol earlier. Constable Smewing, the officer who had stopped the defendant and dealt with him initially, formed a belief that the defendant had been driving with alcohol in his body, and made a formal approved screening device demand.

Roadside Testing Procedure

Sergeant Krug who was the officer driving the lead police vehicle, and Constable Smewing in the following police vehicle, were enroute to a paid duty task and did not have an approved screening device in either of their vehicles.

Sergeant Krug called over his police radio for an ASD to be brought to the scene, and two on-duty officers independently responded to that radio call, Constable Perreira and Constable Miziolek.

Constable Perreira got there first, and gave his approved screening device to Sergeant Krug and left then, on a call. Sergeant Krug administered the test to the defendant and the result was a Fail.

Sergeant Krug arrested the defendant and turned custody of the defendant over to Constable Miziolek to continue the arrest as Sergeant Krug and Officer Smewing had to get to their assigned duty. Sergeant Krug gave Officer Perreira's approved screening device to PC Miziolek.

Detachment Procedures

Constable Miziolek continued the arrest. He gave the defendant the defendant's Charter rights to counsel. He gave him the standard police caution and made a breath demand for a sample of the defendant's breath to be provided to the qualified technician at the detachment into an approved instrument.

He then transported the defendant the short distance to the detachment, lodged him in a cell, arranged for the defendant to speak to duty counsel in private, briefed the qualified technician as to the grounds, and turned the defendant over to the qualified technician for breath tests.

Later, he received the results of those tests, served a copy of the Certificate of Qualified Technician upon the defendant, and released him from the detachment.

The Certificate of the Qualified Technician was filed as Exhibit 1, and is relied upon by the Crown here, although the qualified technician was apparently available today to testify, if desired.

Officer Miziolek's breath test Grounds Sheet was filed as Exhibit 2.

Crown's Submission

The Crown submits that the charge is proven beyond a reasonable doubt.

Defence Submissions

On behalf of the defendant, it is submitted that there were two fatal flaws in the procedure used at the roadside.

First, that there is a doubt that the defendant was tested by an approved screening device.

Second, that the meaning of a Fail result on the approved screening device was ambiguous between the evidence of the three police witnesses.

If the approved screening device procedure was not followed, it is then submitted that there is no basis for the Intoxilyzer breath demand and the readings should not be admitted to convict the defendant.

Court's Analysis

Approved Screening Device

On both points, I find there is overwhelming evidence that the roadside device used by Sergeant Krug to test the defendant was, indeed, an approved screening device, was properly operated by Sergeant Krug, and that he gave appropriately recognized results from the Fail.

Constable Smewing testified that he had a reason to suspect that the defendant had consumed alcohol, and was operating a motor vehicle. He made a formal breath demand for the approved screening device.

Neither Sergeant Krug nor Constable Smewing had any reason to have an approved screening device with them as they were tasked to direct traffic as paid duty officers.

Constable Perreira brought the device to the scene.

Constable Smewing observed Sergeant Krug test the defendant with the device.

He testified as to what the device was calibrated to do. He described what happens when the device displays a reading of 0 to 49, when the result was between 50 and 100, and that a Fail result meant that the device had analyzed that the alcohol content in the defendant's breath was a reading of over 100 milligrams of alcohol in 100 millilitres of blood, by his evidence.

The answer to the next question put to him by the Crown was that Sergeant Krug then arrested the defendant for the offence of operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood.

Breath vs. Body Analysis

The defendant notes that the officer said that the approved screening device Fail reading meant over 100 milligrams of alcohol in 100 millilitres of blood in the defendant's breath, not the defendant's body.

In my view, this is irrelevant, as the defendant's breath came from his body and was then analyzed by a device approved to do so.

In any event, Constable Smewing was not the officer who administered the test, nor who arrested the defendant, nor did Constable Smewing continue that arrest.

Officer Testimony

Constable Smewing:

In Chief Officer Smewing did not identify the approved screening device. In Cross-Examination he did so, as a model 7410 GLC manufactured by Dräger. He believed that the letters GLC were on the outside case of the device.

Sergeant Krug:

Sergeant Krug testified that Constable Perreira brought an approved screening device to the scene.

Sergeant Krug identified the device as an Alcotest 7410 GLC approved screening device, provided the serial number, the inventory number at the Caledon detachment, the last calibration date and the seal number affixed to the device.

Sergeant Krug is a qualified technician and also calibrates these units on occasion.

He testified in reply that the manufacturer was Dräger, and that only the GLC model is used at the Caledon OPP Detachment, as he is in charge of the ASD inventory and has to report on these devices from time to time.

He testified that GLC letters are not embossed on the outside of the unit, but show up on the ASD screen when it is turned on and did so, here.

Sergeant Krug, who administered the test to Mr. Bazso on this occasion, testified that a Fail result meant that the defendant had a blood alcohol concentration of 100 milligrams or higher of alcohol in 100 millilitres of blood, allowing him to form grounds to then arrest the defendant for the drive over 80 charge that the defendant faces today.

The fact that some of Sergeant Krug's evidence, including the manufacturer of the device, came in Re-Examination, is not relevant since my task is to apply the law to all of the evidence before me.

Constable Miziolek:

Constable Miziolek, who continued the arrest of the defendant and helped process him at the detachment, testified that he saw the approved screening device Fail, and watched Sergeant Krug then arrest the defendant. He obtained details of the grounds for arrest from those two initial officers, combined them, and passed them on to the qualified technician.

This officer testified that a Fail result on the approved screening device meant that the defendant's blood alcohol concentration was more than 80 milligrams of alcohol in 100 millilitres of blood.

This is an accurate statement, since 100 milligrams of alcohol in 100 millilitres of blood, indeed, is more than 80 milligrams of alcohol in 100 millilitres of blood.

Constable Miziolek described the device he saw Sergeant Krug use, and could not say whether the letters GLC were stamped on the case or not.

He recorded and testified to the model number and serial number, however, noted that Sergeant Krug administered the test, not this officer. As already noted, he saw the Fail result and described what that meant to him.

Conclusion

Combining all the evidence before me, there is no doubt that the defendant's blood alcohol concentration was estimated at the roadside by an approved screening device, as set out in the approved screening devices order, and within the definition of an approved screening device set out in subsection 254(1) of the Criminal Code, that is, "Alcotest registered trade-mark 7410 GLC".

I note, in passing, that the manufacturer's name is not contained in the ASD order.

Sergeant Krug, the person who actually administered the test, fully described the device and fully accurately.

Further, the approved screening device is an investigative device used to determine whether grounds exist to take the next step in an investigation by requiring the defendant to provide a sample of his or her breath for analysis by the much more accurate Intoxilyzer 8000C instrument.

Small defects in the description of the device, or inexact statements as to what a Fail result means, would not lead me to take the next step, suggested by counsel, and exclude those accurate results taken at the police station.

Here, in fact, there are no defects in the operation of the device by Sergeant Krug. The approved status of the device is properly described and what the Fail result meant was also properly described.

In the event, the approved screening device test was an accurate estimate of the defendant's then blood alcohol concentration at the side of the road. That estimate was more than 80 milligrams of alcohol in 100 millilitres of blood, and the officer, therefore, had reasonable and probable grounds to arrest the defendant for the offence before me, and to require that the defendant submit to testing on the approved instrument at the detachment.

The result of that test was 100 milligrams of alcohol in 100 millilitres of blood, an amount more than the legal limit and the Crown has proven the offence before me, beyond a reasonable doubt.

Judgment

Accordingly, the defendant is convicted of this offence.

Court Information

Information No.: 10-1454, 10-197

Ontario Court of Justice

Her Majesty the Queen v. Andrew Bazso

Before the Honourable Justice B. Pugsley

Date: June 28, 2013 at Orangeville, Ontario

Appearances:

• R. Fetterly, Counsel for the Crown
• M. Pasquale, Counsel for A. Bazso