B.C. woman acquitted of failing to provide breath sample because police did not make demand 'immediately'
A B.C. judge has acquitted a Vancouver Island woman of failing to provide a breath sample because police waited several minutes before asking her to blow into an alcohol-screening device after they suspected she was impaired.
The judge also found "obvious inconsistencies in the police evidence" in the case prior to ruling the officers' delay in demanding the breath sample meant the woman was no longer legally obliged to provide it.
In a decision handed down last week, provincial court judge Ted Gouge acquitted Joanna Brooker, of Duncan, B.C., of failing to provide a breath sample because the Criminal Code requires such a demand be made "immediately" after police have sufficient evidence to suspect someone was driving while impaired.
The judge tossed out the charge when he found that upwards of 10 minutes had passed between when the officers had sufficient grounds to demand a breath sample and when the demand was actually made.
REPORT OF AN IMPAIRED DRIVER
According to the decision, RCMP Const. Mongraw was on patrol near Chemainus, B.C., on Jan. 8, 2020 when the radio dispatcher informed her of an incident at a nearby pub.
Staff at the pub had reportedly refused to serve alcohol to a woman because she appeared intoxicated. The woman allegedly got back in her car and drove away, but not before someone took down her description and licence plate number.
The dispatcher provided the vehicle's registered address to Mongraw, who drove to the home and found the vehicle in the driveway with its interior lights still on, she testified.
The officer knocked on the front door and was answered by Brooker and a man who were arguing, she said. The woman had red, glassy eyes and a strong smell of alcohol on her breath, she said.
Another police officer, RCMP Const. Wreggitt, testified that he arrived at the home and found Mongraw speaking with the man and Brooker, with whom he had previous dealings.
Wreggitt also observed that Brooker had red, glassy eyes and smelled strongly of alcohol, according to his submissions to the court.
CONFLICTING REPORTS
When Brooker told the police she was unwilling to speak with them further and was going back into the home, Wreggitt told her she was being detained for an impaired driving investigation and the two officers escorted her into the backseat of Wreggitt's police car.
Mongraw then went back to the door and spoke with the man, who told her Brooker came home intoxicated, according to the officer's testimony. Mongraw estimated the conversation lasted nine minutes.
However, the man testified in Brooker's defence and denied telling police Brooker was intoxicated when she got home. He instead testified that Brooker was drinking vodka at the house before he got home and he did not know whether or not she was sober when she arrived home.
When Mongraw asked Brooker for a breath sample, she refused and asked to speak with a lawyer, according to the police testimony. Mongraw then told her she was under arrest for refusing to provide the sample.
'I AM OBLIGED TO ACQUIT HER'
The judge ruled that Mongraw had reasonable grounds to demand a breath sample as soon as she spoke to Brooker at the front door, given that she had the report from the pub, including a description of the woman and the vehicle, and could smell alcohol on the woman's breath.
"Those facts were sufficient to entitle Const. Mongraw to make a breath demand," the judge wrote.
Because Mongraw did not have access to an alcohol-screening device until Wreggitt arrived with one, the demand for a breath sample "should have been made as soon as Const. Wreggitt arrived," the judge found.
Instead, the estimated nine or 10 minutes that passed while Brooker waited in the police vehicle before the demand for a breath test was given was more than was reasonably necessary, the judge found.
"I conclude that the demand in this case was not made 'immediately,' and that Ms. Brooker was not legally obliged to comply with it," the judge wrote. "For that reason, I am obliged to acquit her."
CTVNews.ca Top Stories
'A beautiful soul': Funeral held for baby boy killed in wrong-way crash on Highway 401
A funeral was held on Wednesday for a three-month-old boy who died after being involved in a wrong-way crash on Highway 401 in Whitby last week.
'Sophisticated' cyberattacks detected on B.C. government networks, premier says
There has been a "sophisticated" cybersecurity breach detected on B.C. government networks, Premier David Eby confirmed Wednesday evening.
Police handcuff man trying to enter Drake's Toronto mansion
Toronto police say a man was taken into custody outside Drake's Bridle Path mansion Wednesday afternoon after he tried to gain access to the residence.
Biden says he will stop sending bombs and artillery shells to Israel if they launch major invasion of Rafah
U.S. President Joe Biden said for the first time Wednesday he would halt shipments of American weapons to Israel, which he acknowledged have been used to kill civilians in Gaza, if Prime Minister Benjamin Netanyahu orders a major invasion of the city of Rafah.
Rookie goalie Arturs Silovs to start for Canucks in Game 1 vs. Oilers
Rookie goalie Arturs Silovs will start in net for the Canucks as Vancouver kicks off a second-round series against the Edmonton Oilers Wednesday night.
Nijjar murder suspect says he had Canadian study permit in immigration firm's video
One of the Indian nationals accused of murdering British Columbia Sikh activist Hardeep Singh Nijjar says in a social media video that he received a Canadian study permit with the help of an Indian immigration consultancy.
Pfizer agrees to settle more than 10K lawsuits over Zantac cancer risk: Bloomberg News
Pfizer has agreed to settle more than 10,000 lawsuits about cancer risks related to the now discontinued heartburn drug Zantac, Bloomberg News reported on Wednesday, citing people familiar with the deal.
Quebec premier defends new museum on Quebecois nation after Indigenous criticism
Quebec Premier Francois Legault is defending his comments about a new history museum after he was accused by a prominent First Nations group of trying to erase their history.
U.S. presidential candidate RFK Jr. had a brain worm, has recovered, campaign says
Independent U.S. presidential candidate Robert F. Kennedy Jr. had a parasite in his brain more than a decade ago, but has fully recovered, his campaign said, after the New York Times reported about the ailment.