Delay to change alcohol solution results in acquittal

In the recent case of R. v. Drazdoff, (June 3, 2010) Nelson Registry no. 21187-1 (Provincial Court), the RCMP allowed the solution by which alcohol in breath is measured by the machine to expire. The delay required to change the solution, followed by a test to ensure the machine was operating properly, resulted in the breath tests not being taken as soon as practicable, as required by the Criminal Code. Mr. Drazdoff was acquitted as Crown Counsel was unable to rely on the presumption of identity and there was no evidence that his Blood Alcohol Concentration was above the legal limit.

4 The question in this case is whether police obtained a sample of his breath as soon as practicable, as required by s. 258(1)(c)(ii) of the Criminal Code, in the 55 minutes that elapsed between the commencement of the observation period to first breath sample. […]


12 Police did nothing unnecessary during the time that elapsed between when Mr. Drazdoff was placed in the observation room and his testing.


13 However, Mr. Drazdoff argues that while officers acted quite reasonably in changing the solution, the real problem in this case lies with the reason why the solution needed changing in the first instance.


14 Constable Finkensiep testified that it was the practice of the Castlegar RCMP detachment to review the Datamaster standard log and to change the solution before expiration, rather than waiting. Therefore, on the evidence, there is effectively an unexplained reason for the failure of a member of the detachment to follow its own policy, as well as the Datamaster recommendation, to replace the solution before its expiry date.


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27 It was reasonable for police to deal with the error, but they cannot be immune from responsibility for having created the error in the first instance.


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34 It seems to me that if this aspect of impaired driving investigations are rendered immune from judicial review, or unexamined generally, there is nothing to prevent police from lapsing in their maintenance and leaving persons such as Mr. Drazdoff waiting. I do not think that persons under investigation for impaired driving who are detained by police should bear this burden.