R. v. Stearns (D.F.), (1995) 65 B.C.A.C. 147 (YukCA)

• Judge: McEachern, C.J.B.C., Cumming and Goldie, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: September 22, 1995
• Jurisdiction: Yukon
• Citations: (1995), 65 B.C.A.C. 147 (YukCA)

R. v. Stearns (D.F.) (1995), 65 B.C.A.C. 147 (YukCA);

    106 W.A.C. 147

MLB headnote and full text

Regina (appellant) v. Daniel Floyd Stearns (respondent)

(YU00294)

Indexed As: R. v. Stearns (D.F.)

Yukon Court of Appeal

McEachern, C.J.B.C., Cumming and Goldie, JJ.A.

September 22, 1995.

Summary:

The accused was acquitted of driving while having an excessive blood-alcohol content. The Crown appealed.

The Yukon Court of Appeal allowed the appeal, entered a conviction and remitted the matter for sentencing.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer - Demand - Reasonable grounds - An officer stopped the accused driver, who "failed" a roadside screening test - The officer used the result as a ground for giving the accused a breathalyzer demand - The officer knew the accused had his last drink more than 15 minutes before the test, but did not ask the accused if he had belched or regurgi­tated during that period before his arrest - The Yukon Court of Appeal held that it could not be assumed that the "fail" read­ing was unreliable and not a valid basis for a reasonable and probable belief in grounds for a breathalyzer demand, par­ticularly when personal observations showed the accused was drinking.

Cases Noticed:

R. v. Bernshaw (N.) (1993), 28 B.C.A.C. 247; 47 W.A.C. 247; 85 C.C.C.(3d) 404 (C.A.), revsd. [1995] 1 S.C.R. 254; 176 N.R. 181; 53 B.C.A.C. 1; 87 W.A.C. 1; 95 C.C.C.(3d) 193, refd to. [para. 12].

Counsel:

R. Garson, for the Crown;

No one appearing for the respondent.

This appeal was heard at Vancouver, British Columbia, before McEachern C.J.B.C., Cumming and Goldie, JJ.A., of the Yukon Territory Court of Appeal. The deci­sion of the court was delivered orally on Septem­ber 22, 1995.