Trial on a charge of refusal to provide a screening breath sample. At trial, the officer did not have a copy of the wording of the demand read to the accused, and testified: “… so the demand just states that if he would accompany me to provide a sample of his breath.”
Held: Acquittal entered.
“Unlike the authorities cited, where a generic statement that a breath demand was made was found to be acceptable, in this case the officer stated in evidence what the demand was and it is not acceptable.” A lawful demand must convey: (1) that the breath sample must be provided forthwith; (2) the sample must enable a proper analysis in the officer’s opinion; (3) that the analysis must be made by means of an approved screening device; (4) and that the detainee must accompany the officer for that purpose if necessary.”
K. Fagan – Defence Counsel