Digest: R v Meroniuk, 2018 SKQB 104

• Date: April 04, 2018

Reported as: 2018 SKQB 104

Docket Number: QB17490 , CR 15/16 JCY

Court: Court of Queen's Bench

Date: 2018-04-04

Judges:

• Brown

Subjects:

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

Digest: The appellant appealed from his conviction, apparently for driving while his blood alcohol content exceeded .08. The background to the case was that an RCMP officer had received a report of mischief. The complainant said that a truck had ruined his driveway by making doughnuts. The officer saw a truck being driven erratically on the highway. He followed it, suspecting the driver was impaired, into the accused�s farmyard. When the accused exited it, the officer approached him and asked him if he was OK. The accused said that he had just finished a hunting trip and the officer told him that he was investigating a complaint about damage done to a property by a vehicle which prompted the accused to reply that �they pissed him off� and he �did something stupid�. The officer noted that the accused had glassy eyes and that he smelled of alcohol, so he made an ASD demand, saying that he had a reasonable suspicion that the accused had alcohol in his body. The accused was non-compliant and looked aggressive. The officer repeated the demand and the accused walked to the police vehicle. He did not demonstrate any signs of impairment. Once in the police vehicle, the officer made the formal ASD demand at 11:10 p.m. After another period of non-compliance, the accused took the test and failed. He was then advised that he was under arrest for impaired driving and advised of his right to counsel, but he did not request to speak to a lawyer. A formal breath demand was made at 11:33 p.m. The accused provided his breath sample at 12:52 a.m. Among the grounds of appeal were that the Provincial Court trial judge erred: 1) in finding that the Crown met the burden in s. 258(1)(c)(ii) of the Criminal Code that the first breath test be taken within two hours. The defence argued that the two-hour window to take breath samples commenced at 10:52 p.m. and in order to apply the presumption in s. 253(1)(c) of the Code, the trial judge would need to have evidence that the accused was driving at that time. The officer testified that he turned his emergency lights on at 10:38, but the judge determined that the sample was taken within the two hours because there was evidence that the...