Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Juan Carlos Bustamante

Before: Justice Peter A. Harris

Reasons for Judgment released on: September 26, 2014

Counsel:

• Adrienne Samberg, counsel for the Crown
• Frank Bernhardt, for the Defendant

Judgment

P. HARRIS, J.:

[1] Juan Bustamante was charged on Dec. 11, 2011 with operating a motor vehicle having consumed "excess alcohol". He takes no issue with breath recordings of 110 mgs. and 90 mgs. percent but submits that there is a reasonable doubt that his blood-alcohol levels were over 80 mgs. percent at the time of driving as a result of "bolus" alcohol consumption just before being stopped in a R.I.D.E. spot-check.

The Evidence

[2] P.C. Bogamil Bryl testified he established a R.I.D.E. on westbound Queensway Ave. at Colborne Lodge Drive, Toronto at 1:00 a.m., December 11, 2011. At 2:15 a.m. he stopped a vehicle driven by Mr. Bustamante. As a result of observations and an admission to "drinking at a nightclub", an A.S.D. test was administered resulting in a "fail" result. Subsequent intoxilizer tests at Traffic Services produced breath sample readings of 110 and 90 mgs. percent at 3:31 and 3:54 a.m. respectively.

[3] Mr. Bustamante gave evidence and told the court that he and his girlfriend travelled from the Vaughan area, north of Toronto to the Rolling Stones Club on Queen Street west of Dufferin Street in Toronto and were "inside the bar at 12:00 midnight". He stated they were celebrating his girlfriend's sister's birthday. He said he started drinking "around 12:15 a.m". He testified he had three beers to the "end of the night" and knew how many drinks he had consumed because he was pacing himself. He was watching the number of beers because he was the "designated driver". He stated that at the end of the night, he ordered a shot of vodka just before leaving the bar. He said he later checked with the bar and learned the shots were the 1.5 oz. size. Mr. Bustamante described a toast he joined in called a "cheers" to the "birthday girl" during which he drank the one shot he had ordered and was handed a second one and drank it, "because it would be rude to turn it down". He stated "right after the shots we went out the door", and he said he drove through the R.I.D.E. check with three passengers and estimated that it was 10 minutes from his last drink to the point where he was stopped at 2:15 a.m. He said he was not impaired and "felt fine" to drive.

[4] Mr. Bustamante was cross-examined months later, on September 19th 2014, and gave the following evidence: he stated he checked into a hotel in Toronto with his girlfriend about 8:00 p.m. but could not recall the hotel's name. He stated they arrived at the bar at 11:00 p.m. and was drinking by 11:15 p.m. – consuming three beers in about 45 minutes each. He testified he was stopped 5 minutes from the bar at a R.I.D.E. spot while going back to the hotel. He gave evidence he drank a beer every 45 minutes because he was trying to stay under the alcohol limit, "I know how to pace myself". The Crown suggested to him that it didn't make sense that he was pacing himself but before he got into car he drank [two shots of] hard liquor. Mr. Bustamante replied that: "it was 'cheers' and I made a mistake". He agreed he had two shots before he left the bar. He stated that his girlfriend's sister "threw up", "that's why we left the bar." The Defendant agreed the times were approximate but he thought it was 2:00 a.m. "when we got to the car" and it was 2:15 a.m. when his car was pulled over by the officer. In re-examination he stated he had two shots within 5 minutes of leaving the bar and was arrested within 5 minutes of leaving the bar.

[5] Ismail Moftah, Forensic Toxicologist, provided a report that was admitted in evidence as Exhibit 8(b). He offered a qualified expert opinion of the Defendant's blood-alcohol at the time of the R.I.D.E. stop at 2:15 a.m. He concluded that the Defendant could have had the blood-alcohol levels, as determined by the Intoxilizer at the Division, but still be at or below 80 mgs. of alcohol in 100 mls. of blood at the time of driving, on basis of the following hypothetical drinking pattern:

• 3 bottles of domestic beer between approx. 11:15 p.m. and 1:50 a.m.;
• Two 1.5 oz. to 2 fl.oz. shots of vodka between approx. 2:00 a.m. and 2:10 a.m.;
• He had consumed between 1.2 and 3 fl. oz. just before (within 15 mins.) of the incident (arrest).

Analysis

[6] While the burden of proof in any criminal proceeding always falls on the Crown, a defendant raising a "bolus drinking" defence at trial must satisfy the court that there is:

(1) credible evidence of a "bolus" consumption pattern and,

(2) substantial consistency between that evidence and the factual basis of the toxicologist's opinion to the effect that the blood-alcohol level at the time of arrest would be at or under 80 mgs. percent at the time of driving

for the opinion to have any real weight or evidentiary value.

[7] Unfortunately, Mr. Bustamante's evidence about the number of drinks he consumed, the specific amount of alcohol he consumed and when he consumed that alcohol, was in my view, manifestly unreliable. According to his evidence, when he arrived at the party with his girlfriend he began pacing himself and had only three beers to the point when it was time to leave. He either started drinking at 11:15 p.m. or 12.15 a.m. depending on which version of his evidence one might choose to rely on. Mr. Moftah employed the start time of 11:15 p.m. Additionally, if Mr. Bustamante stayed at a hotel that evening, presumably he would know the name and address of that establishment and be able to substantiate that evidence with receipts. If he paced himself so carefully as the "designated driver" and purported to be responsible enough to ensure he would not be over the legal limit in terms of his blood-alcohol content, does it make sense that he would consume approximately 3 fl. oz. of vodka just as he was leaving the club?

[8] Not only would it be inconsistent and illogical to throw caution to the wind and order a shot of vodka as he was leaving, but to 'down' a second 'gift' shot within minutes, just because it would be rude to refuse, even though he would be putting lives at risk, is behaviour that is considerably outside the range of normal. This is a significant volume of liquor (3 fl.oz. of 40% alcohol) to drink just to be sociable particularly in view of the fact the party was over, his friends and relatives were leaving the club and on one version of events the atmosphere was not exactly convivial. He testified "we had to leave" the establishment because his girlfriend's sister "threw up".

[9] Most importantly, the defendant's time calculations were inconsistent and not based on any believable deductive process or independent confirmation. There was no reasonable explanation offered as to why he would keep track of the number and timing of drinks except for "pacing" and that rationale was destroyed by his claim of drinking shots of vodka virtually on the way out the door. There is no basis for thinking this evidence is any more than after-the-fact reconstructive guesswork with a view to compressing the drinking evidence into the 15 minute bolus drinking window of absorption delay.

[10] I acknowledge that his borderline readings suggest that some level of bolus drinking could be in play but there was simply no credible evidence to support the toxicology calculations that placed him below the legal blood-alcohol level at the time of driving. As well, on the basis of the following evidence, the 'bolus' drinking could have taken place within as little as 10 minutes before the driving or as much as 20 minutes before the driving: (from para.4, supra)

The Defendant agreed the times were approximate but he thought it was 2:00 a.m. "when we got to the car" and it was 2:15 a.m. when his car was pulled over by the officer. In re-examination he stated he had two shots within 5 minutes of leaving the bar and was arrested within 5 minutes of leaving the bar.

[11] For the bolus alcohol consumption to afford the defendant a defence to the excess alcohol charge, the quantity he drank at the club before driving has to be determinable with some precision. In order for the defendant's blood-alcohol level to be at or below 80 mgs. percent at the R.I.D.E. checkpoint, all of the vodka consumed would have to have been ingested within 15 minutes of the driving leaving some quantity of alcohol unabsorbed, according to the toxicology report. The defendant's time estimate varies between 10 and 20 minutes. There is no reliable evidence the vodka was served in 1.5 oz. shot glasses. I have no reliable evidence of how long it would take to drive from the club to the R.I.D.E. checkpoint. Even the toxicology report appears to base the calculation on a bolus consumption of 3 to 4 oz. at one point and between 1.2 and 3 oz. in another part of the report. Surely the bolus consumption cannot vary this significantly and still produce the same exonerating results.

[12] In the circumstances, I am not able to accept the defendant's evidence as to the timing and quantities of alcohol consumed due to the lack of reliable evidence. Without reliable evidence of the timing and quantities of alcohol consumed, the bolus drinking proposition is ultimately little more than speculation and guesswork. I have concluded that I cannot accept the evidence of the defendant as to bolus consumption for the reasons given, and that evidence does not raise a reasonable doubt as to whether the blood/alcohol level at the time of the driving incident was at a prohibited level.

The Law

[13] One might then ask – has the Crown met its onus by proving that Mr. Bustamante had not engaged in bolus drinking? There are no statements and no other witnesses as to his drinking pattern at the club. In R. v. Paszczenko; R. v. Lima, 2010 ONCA 615, the Court of Appeal considered this question and reached the following conclusions:

At one level, the answer is straightforward: the Crown need do very little. The toxicologist's report is premised – amongst other things—on there being no bolus drinking. In the absence of something on the record to suggest the contrary, on what basis could a trier of fact conclude there was bolus drinking? This court has answered the question posed by concluding that triers of fact may resort to a common sense inference in such circumstances, namely, that people do not normally ingest large amounts of alcohol just prior to, or while, driving: see Grosse, Hall, and R. v. Bulman, 2007 ONCA 169. As noted above, bolus drinking has been said to be a "relatively rare" phenomenon: Phillips, at pp. 158-62 C.C.C. "No bolus drinking" is therefore largely a matter of common knowledge and common sense about how many people behave.

Conclusion

[14] I have applied the reasonable inference suggested in the case authorities and have concluded that normal people do not consume large quantities of alcohol shortly before driving and that it was inherently unlikely that the defendant's evidence could be correct ─ that in the space of a few minutes or so, before driving away from the club and knowing he was responsible for several passengers, he consumed the equivalent of 3 ounces of 40% alcohol. I have rejected his evidence on this issue and having done so, there is no evidence of bolus drinking, nor is there any other evidence to undermine the common-sense inference of drinking at a normal pace: R. v. Hall, 2007 ONCA 8.

[15] Having utilized the formula for assessing credibility found in R. v. W.(D.), I have concluded that there is too large a consistency gap between the defendant's testimony and the factual underpinnings of the toxicology opinion to permit the acceptance of the defence evidence as credible. In addition, the defendant's testimony does not raise a reasonable doubt. I am not convinced the defendant is able to reliably recall that he drank the two shots of vodka within 15 minutes of his arrest. Additionally, on the evidence I do accept – the testimony of P.C. Bryl and the certificate of analysis – no reasonable doubt arises.

[16] Having considered all of the evidence in this case, I'm satisfied the Crown has proven the charge of excess alcohol beyond a reasonable doubt and Mr. Bustamante will be found guilty of operating a vehicle with a blood-alcohol level of over 80 mgs. in 100 mls. of blood.

Released: September 26, 2014

Justice P. Harris