Client charged with impaired driving and over.08. Issue regarding reliability of screening breath test failure, and legality of his arrest. Client stopped randomly by police after leaving bar. Screening test administered within 2 minutes of him being stopped. Client testified that he was smoking a cigarette upon being stopped. Police officer denied this. Officer acknowledged that if client had been smoking the screening test failure would have been unreliable as the test would have been performed within 5 minutes of smoking a cigarette, contrary to his Edmonton Police Service training. This training require police to wait at least 5 minutes after motorist’s last cigarette before administering a roadside breath test.
Held: Acquittals on both charges.
Client’s evidence believed. Because he smoked within 5 minutes of screening test, the test “fail” was unreliable. Therefore, the arrest of the accused was illegal, and the subsequent breath tests taken at the police station were excluded from evidence under the Charter of Rights and Freedoms.