Digest: Karcha v R, 2018 SKQB 101

DateMarch 29, 2018

Reported as: 2018 SKQB 101

Docket Number: QB17498 , QB CRM 22/16 JCY

Court: Court of Queen's Bench

Date: 2018-03-29

Judges:

  • Krogan

Subjects:

  • Criminal Law � Motor Vehicle Offences � Driving with Blood Alcohol Exceeding .08 � Conviction � Summary Conviction Appeal

Digest: The appellant was convicted of driving while her blood alcohol content exceeded the legal limit contrary to s. 253(1)(c) of the Criminal Code. She appealed the conviction. The RCMP had received a complaint regarding a situation at the appellant�s residence and when they arrived, she was in a vehicle and pulling out of the garage onto the driveway. The officer made an ASD demand and after the appellant provided a breath sample, the device registered a fail. A breath demand was made and the appellant was taken to the nearest detachment where she provided samples. The two readings indicated 150 mg of alcohol in 100 milliliters of blood. During the trial in Provincial Court, the officer testified that during the 15-minute observation period, he had not watched the appellant consistently, but had not heard her burp, although he acknowledged that she may have done so silently. The RCMP Manual provided that continuous watching was required during the observation period because a wet burp could contaminate the mouth with alcohol. The probability of a wet burp occurring twice at least 15 minutes apart and producing two falsely high results that agreed within 20 percent was extremely low. The qualified breath technician testified that the Intoxilyzer she used to take the appellant�s breath samples possessed electro-chemical and infrared systems that would detect mouth alcohol and if it was present, the machine would abort the test and an error message identifying mouth alcohol would appear. The technician said that in this case, the machine was functioning properly, no error message had appeared, and the samples were reliable. The trial judge concluded that, given the evidence of the technician and the breathalyzer readings, despite a lack of continuous 15-minute observation periods, the Crown had met the burden to save the presumption of accuracy. As it had not been rebutted, the judge accepted the readings as reliable and accurate and convicted the appellant. The grounds of appeal were that the trial judge: 1) erred in law by mistakenly considering the results of the ASD in considering the accuracy of the evidentiary breath samples; and 2) erred in...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT