Man acquitted of drunk driving-related charge over delay in roadside test

Green said police are obligated to administer screening tests “forthwith,” a term legally defined as “immediately or without delay.”

He said the officer did not demand roadside screening quickly enough, resulting in the blood alcohol readings being excluded from the case.

Court heard the incident took place in September 2014 while Buenrostro-Ramirez was driving to a friend’s home with his then-girlfriend, Jasmine Ruiz.

Ruiz testified that while she had consumed three different types of alcohol, she only recalled mixing a drink containing a single shot of tequila for her boyfriend.

Court heard the couple got into an argument while driving after Ruiz forgot her purse at home, a factor that both said likely contributed to the subsequent car accident. Buenrostro-Ramirez drove into the back of a van, causing damage to both vehicles but no injuries, court heard.

Police were called to the scene of the accident at 10:57 p.m., and Toronto police officer Rachid Saib arrived 15 minutes later, Green recounted in his decision.

At 11:15 p.m., Saib announced that he intended to “put a screen on” Buenrostro-Ramirez after detecting the smell of alcohol on his breath, Green wrote.

Upon hearing that he had been arguing with Ruiz, however, Saib told court he became concerned that the case may also involve elements of alleged domestic violence which caused him to pursue two trains of thought at the same time.

At 11:25, Saib formally read the demand for roadside screening and conducted the test, which Buenrostro-Ramirez failed, Green noted.

Screening results taken two hours later at the police station found his blood alcohol content to be roughly 140 milligrams per 100 millilitres of blood, well over the legal limit of 80 milligrams, court heard.

Despite the readings, Green rejected Saib’s approach. He said there was little basis for believing domestic violence was at play, since Ruiz did not appear to be closely questioned, showed no signs of injury and did not indicate any signs of distress.

He also said Saib waited too long between forming a suspicion that roadside screening was necessary and actually administering the test.

“It is not a question of the precise duration of the gap between the formation of the requisite belief and the demand but the fact that the demand was simply not made ‘without delay,’” Green wrote in his March 1 decision.

“In my view, Saib’s delay in making the demand was not so much a product of divided investigative loyalties as it was his own indifference to his statutory and constitutional obligations.”

Andrew Murie, chief executive of anti-drunk-driving group MADD Canada, said the ruling was “disappointing” and sent the wrong message to would-be offenders.

He said the need to conduct testing “forthwith” is reasonable, since officers are hoping to capture readings that most closely reflect a driver’s condition at the time of an accident.

But he said the term is too loose, calling on judges to clarify the issue in future rulings by setting a firm time window in which police should administer their tests.

“It says ‘forthwith’ in the criminal code. What does ‘forthwith’ mean? Nobody knows,” Murie said. “It should be reasonable, and by our definition this was very reasonable in this situation.”

Michelle McQuigge, The Canadian Press

by Canadian Press

Man acquitted of drunk driving-related charge over delay in roadside test

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