R. v. Gartner, (1992) 99 Sask.R. 74 (ProvCt)

• Judge: Orr, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: February 27, 1992
• Jurisdiction: Saskatchewan
• Citations: (1992), 99 Sask.R. 74 (ProvCt)

R. v. Gartner (1992), 99 Sask.R. 74 (ProvCt)

MLB headnote and full text

Her Majesty The Queen v. David Michael Gartner

Indexed As: R. v. Gartner

Saskatchewan Provincial Court

Orr, P.C.J.

February 27, 1992.

Summary:

The accused was charged with impaired driving and refusing to comply with a demand for a breath sample. The accused made several attempts to blow into the mouthpiece, which were unsuccessful.

The Saskatchewan Provincial Court found the accused not guilty of impaired driving and convicted him on the charge of refusing to provide a breath sample.

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evi­dence and proof - In response to a demand by a peace officer for a breath sample, the accused made several unsuc­cessful attempts to blow into the mouth­piece - The accused was charged with impaired driving and refusing to comply with a demand for a breath sample - The Saskatchewan Provincial Court acquitted the accused of impaired driving and con­victed him on the refusal charge - There was not proof beyond a reasonable doubt of a marked departure from the norm in the accused's driving.

Criminal Law - Topic 1377

Offences against person and reputation - Motor vehicles - Breathalyzer - Refusal to provide breath sample - In response to a demand by a peace officer for a breath sample, the accused made several unsuc­cessful attempts to blow into the mouth­piece - The accused was charged refusing to comply with a demand for a breath sample - The Saskatchewan Provincial Court convicted the accused - The accused had blocked the mouthpiece - The mens rea and actus reus of the offence were present when the accused failed or refused to comply and it did not matter whether or not it was demonstrated that the whole chain of events could have satisfactorily proceeded to their conclusion.

Cases Noticed:

R. v. Kroeger (1991), 96 Sask.R. 19 (Q.B.), consd. [paras. 5 to 8].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 251(f) [para. 6]; sect. 254(3) [para. 12].

Counsel:

D. Kohlenberg, for the Crown;

G. Allbright, for the accused.

This case was heard at Kindersley, Saskatchewan, before Orr, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on February 27, 1992.