Ontario Criminal


Alcohol standard solution not changed for frivolous or unnecessary reason

Accused appealed his conviction for driving over .08. Accused had also been charged with impaired driving and dangerous driving but had been acquitted. Accused was pulled over after officer observed him drive right through stop sign and noted indicia of impairment when he dealt with accused, who then failed ASD test. Breath technician testified that he changed alcohol standard solution in machine, which took two to four minutes, and that machine then required 20 to 25 minutes to warm back up and that encoding of diagnostics would take approximately another three minutes. Around 1 hour and 42 minutes after he was pulled over accused gave BAC reading of 196. As at trial accused submitted Crown failed to offer any evidence explaining what occurred between time breath technician arrived at police station and time when technician began to change alcohol solution in Intoxilyzer. Appeal dismissed. Evidence of breath technician was consistent and he was firm in his evidence that it would take 20 to 25 minutes for Intoxilyzer instrument, solution and simulator to warm up and that diagnostic input would take in order of three minutes following that and as such, that time period was reasonably accounted for. Six minutes unaccounted for was very brief time and it was not necessary for Crown to account for every moment while accused was in custody prior to breath sample being taken. Trial judge made no error by being satisfied that alcohol standard solution was not changed for frivolous or unnecessary reason.

R. v. Cote (Sep. 25, 2012, Ont. S.C.J., Daley J., File No. 811/12CR) Decision at 2012 CarswellOnt 11933 was affirmed. 104 W.C.B. (2d) 633.

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