SafeRoads v. B.W.

(SafeRoads Alberta - Refusal). BW was sanctioned on grounds that knowing a demand had been made, the recipient failed or refused without reasonable excuse to comply with the demand pursuant to s. 320.27 of the Criminal Code of Canada. In this case, the recipient alleged that the investigating police officer was quite aggressive from the beginning of the investigation to the end. The recipient deposed that he followed all police instructions and that when a breath sample was attempted, the blow would be for several seconds. The recipient deposed that there were no sounds coming from the device but that breath could be heard to enter clearly into the device. BW was very that in each case, a lengthy, sustained and hard breath sample was supplied.

BM's Calgary SafeRoads lawyer questioned whether the Approved Screening Device (ASD) was actually powered-on and capable of receiving a sample. Defence counsel further agrued that the investigating officer did not follow training outlined in the ASD operator's Manuel.  To that end, it was argued that BW was only given a singe test (consisting of three opportunities) with no demonstration by the officer. 

The adjudicator made a learned decision based on law. To that end, the adjudicator reasoned:

"...the ASD is designed to assess the quality of the breath sample at the time of testing based on flow rate and volume before determining whether to automatically draw a sample of breath into the ASD for analysis. When the recipient submits they were providing bona fide breath sample attempts and yet no suitable sample is obtained, a question arises regarding the reliability of the ASD even though the device was used within the calibration and maintenance period".  

The adjudicator placed weight on the fact that the officer did not complete a "demonstration" as per police training and while the adjudicator was not persuaded that the ASD was malfunctioning, the adjudicator agreed that on the balance of probabilities, that the Recipient did not fail or refuse to comply with the lawful demand. This was so because absent the demonstration, there was a question as to whether the device was operating correctly. In this case, the adjudicator agreed with King's Bench authority that it is no fair to place an absolute onus on a recipient to prove a device was malfunctioning or incapable of receiving a breath sample.  

BW's roadside sanction was cancelled. 

While David Chow is one of many Calgary criminal lawyers who defends roadside sanctions cases, he is probably one of the Alberta roadside sanctions lawyer's who has done the most of these cases. David routinely has roadside sanctions cancelled for his clients. Most importantly, David will give you an honest legal opinion about your chances of successfully defending a roadside sanctions case. If you have been charged with impaired driving, call a qualified Calgary impaired driving lawyer. Roadside sanctions is an administrative branch of impaired driving law. If you have received a Notice of Administrative Penalty (NAP), contact an experienced Notice of Administrative Penalty/NAP/Roadside Sanctions lawyer for an opinion. David offers a one-time free consultation.