R. v. Heidenreich, 2011 MBPC 36

CITATION: R. v. Heidenreich , 2011 MBPC 36 Date: 20110518 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) K. E. Parker, ) for the Crown ) and ) ) ) Wolfgang Heidenreich ) T. J. Killeen, ) for the Accused ) ) ) Reasons for Decision delivered: ) May 18, 2011 ) CURTIS, P.J. [ 1 ] Wolfgang Heidenreich is charged that on or about May 2, 2009 he was driving while his ability to do so was impaired by drugs or alcohol and refused or failed to provide a breathalyzer sample. [ 2 ] The issues are whether or not he was impaired, and whether, in law, there was a refusal/failure to provide a sample.

Evidence: [ 3 ] The accused and his vehicle came to the attention of Winnipeg Police as they were heading northbound off Route 90 onto eastbound Portage Avenue at about 1:00 a.m. on May 2, 2009. Along that yield is an exit from the Viscount Gort Hotel. As they travelled the yield, a vehicle exited from the hotel in front of the police vehicle. Constable Gauthier, who was driving, said he had to hit his brakes in order to avoid hitting the vehicle. He described activating the brakes to slow down in order to avoid hitting the vehicle.

He did not have to come to a complete stop but slowed to a rolling speed as the other vehicle sped up on the roadway. It was at this point as they were behind the vehicle that police made inquiries through their system on the license plate number. While they were doing so, the vehicle, very shortly after turning onto Portage Avenue, made a right turn onto St. James Street. It then made what was described by the officers as a quick left turn in back of the Olive Garden and Red Lobster restaurants into the parking lot and then right onto Richmond Street.

The officers had the impression that this vehicle was trying to evade them for some reason so they continued to follow it. When it went through the parking lot and turned southbound onto Richmond Street they activated their emergency equipment and made a traffic stop. The vehicle pulled over to the right.

Constable Gauthier got out and went to speak to the driver, and his partner Constable Ilazo took up a position towards the rear passenger side of the vehicle. [ 4 ] Prior to being pulled over by the police, the accused gave evidence that he had been at the Opera earlier the evening before, with a friend whom he had driven home, after the Opera concluded. From there he headed home, but along the way he stopped, first of all, at an establishment on Academy Road where he had one drink while he listened to the band that was playing.

From there, he continued on and stopped in at the Viscount Gort Hotel where he had another single shot and listened to some Karaoke before leaving

the hotel. It was at the time he was exiting the parking lot of the hotel that he came to the attention of police. He testified that when heexited the parking lot, he did not cut in front of any vehicle and, in fact, did not see any traffic. It was at the point where he was onPortage Avenue that he realized there was a police car right behind him but did not know where it had come from. He said his originalintention was to go down St. James Street and make a U-turn in the area of a carwash and go back northbound so he could turn left at thelight to continue westbound on Portage Avenue which would take him home.

He did not want to make a U-turn in front of the policevehicle so he turned into the parking lot and then onto Richmond Street. [5] When police stopped the vehicle, Constable Gauthier approached the driver’s side window and spoke to the accused. Thewindow was down and he bent over to speak to the driver, at which point the driver asked why he was being stopped. The officer notedan odor of alcohol at that time and asked the driver if he had had anything to drink. The response was that he, the driver, had had twodrinks.

The officer’s evidence was that he also noted the driver fumbling as he was trying to get his driver’s license and his registrationfor the officer. He also noted slurred speech and mumbling. The officer testified that at that point, he had a suspicion that the driver’sability to operate a motor vehicle was impaired by alcohol and he demanded a Standardized Field Sobriety Test. [6] Constable Gauthier testified he is a certified field sobriety tester and has been since 2007. He is also a qualified breathtechnician. I note at this point that the officers did not have an ASD with them.

Neither one of them were qualified operators of that pieceof equipment, but both are certified field sobriety testers so field sobriety tests were done. [7] The tests were started at 1:12 a.m. They are comprised of three different elements: 1) Nystagmus; 2) Walk and turn; 3) One leg stand. The results of the tests were that the nystagmus was borderline and the accused failed the other two elements. As a result, ConstableGauthier formed the opinion that the accused’s ability to operate a motor vehicle was impaired by alcohol.

He arrested him and read himthe breath demand, as well as the police caution and right to counsel. The accused indicated he wanted to talk to a lawyer, which he didat the police station from approximately 2:00 a.m. to 2:10 a.m. After doing so, the breath demand was read to him again and he indicatedhe would provide a sample. [8] Constable Gauthier was the technician operating the breathalyzer Data Master BAC on that date. He testified he observed theaccused as he was brought into the breathalyzer room for the first sample. He gave him instructions about how to provide a sample.

Heshowed him that he was using a new mouthpiece by opening a sealed bag and putting the mouthpiece on the instrument. He said theaccused started blowing very lightly, which he did for about five seconds and then stopped. The officer told him to keep blowing whichhe then again did very lightly and stopped. The officer testified he told him that he would have to take a deep breath and blow all of theair out of his lungs, that you have to blow everything out of your lungs.

He advised him that he had to keep blowing until the officer toldhim to stop and also told him it is like blowing up a balloon, you have to keep on blowing. His evidence was the accused said he wasblowing but the officer advised that the instrument tells him when a person is not blowing and he can also hear that there is no longer airgoing through the instrument. There is also an alarm on the instrument where if a person is not blowing, the alarm is audible, but whenan individual is blowing, the alarm stops.

His evidence was that after several tries it got to a point where he advised the accused that if hewasn’t going to provide a proper sample he would be charged with refusal. He took out a new mouthpiece, cut it open and showed him,demonstrated to him how he needed to blow. (The mouthpiece was not attached to the equipment.) After the demonstration, the accusedtried it again and the same thing happened; he blew for maybe five seconds and then stopped. The accused was taken back to theinterview room at approximately 2:55 a.m., and he was read the breathalyzer refusal.

He indicated that he wanted to speak to legalcounsel again. He was provided that opportunity between 2:56 and 3:06 a.m. When he got off the phone, he said he would providesamples. [9] He was taken back to the Data Master machine and was provided with the same instructions: Constable Gauthier said he toldhim to “take a deep breath, you need to blow all the air out of your lungs through the instrument.” The accused indicated he understoodand started blowing but it was a repetition of the earlier attempts; he blew lightly for five seconds and stopped.

At that point the officeradvised him he was being charged with refusal. That was approximately 3:13 a.m. He was taken back to the interview room andsubsequently released to a friend. [10] The accused gave evidence, therefore his evidence must be reviewed in conjunction with the test as set out by the SupremeCourt of Canada in R. v. W.(D.) [D.W.], (SCC), [1991], 1 S.C.R. 742, SCJ No. 26, which provides:

(1) If the evidenceof the accused is believed there must be an acquittal;

(2) If the evidence of the accused is not believed, but the trier of fact is left inreasonable doubt by it, there must be an acquittal; and

(3) Even if not left in doubt by the evidence of the accused, the trier of fact muststill ask whether they are convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidencewhich they do accept. [11] There is little conflict in the evidence with respect to the general context of what happened that night. By that I mean the routetaken by the accused from the Viscount Gort Hotel, the stop, the Standardized Field Sobriety Test, transport to the police station, andfailure of a proper sample to be taken.

There are, however, important differences which go to the heart of the issues. [12] The accused disputes the observations made by the officers with respect to such signs of impairment as the slur of words,fumbling with documents, staggering and his degree of cooperation.

He did not deny the use of alcohol and could not comment onwhether or not his eyes were glossy or red. [13] The accused testified that before the Standardized Field Sobriety Test (SFST) was done he advised the officers as to themedication he was taking (antidepressant medication taken in the morning), and that he had a problem of weakness in one leg as theresult of an historic disc herniation. He normally has no problem at all in walking, but described how he had to lean against the wallwhen washing his left foot in the mornings because he could not stand very long on the right foot.

His evidence was that on the night in

question he was not clear if it was the right foot or the left foot where he had the weakness. Constable Gauthier did not remember such adiscussion or comment and had marked a negative to those questions on the SFST sheet. He said that if he had been given that kind ofinformation he would have pursued a different avenue such as the ASD. Constable Ilazo did recall something of that nature, but thoughtthe accused was saying that as, as he called it, an “alibi”.

There was no follow-up to determine at what point Constable Ilazo recalledthat, if it was before, during or after the field sobriety tests, although in answer to a question on cross-examination he agreed it wasduring the time when the tests were being done. [14] With respect to the nystagmus test, the accused described what the officer used as a “little point light”. Both officers testifiedthat in fact it was a pen that was used. [15] The accused was emphatic that at no time was he ever handcuffed. Both officers said he was at the point they took him into thestation.

It was explained that it is procedure to do so for officer safety, particularly when people are, or may be, impaired. He did notremember going up the stairs into the police station but realized he must have because he is familiar with the station in the sense ofwhere the public access is as opposed to the police entrance.

He described where each of the officers was in relation to himself, which ingeneral appears to be consistent with the officers’ evidence. [16] At the time the breathalyzer tests were administered the accused testified he was shown a mouthpiece in a plastic bag, whichwas removed by Constable Gauthier, and attached to the breathalyzer machine. His observation was that he thought it was very tiny to beused as a mouthpiece. The officer explained to him what he had to do: “…you take all the air into your lung and you breathe it out intothe, into the, into the tube and, and empty the lung. That was important, too.

And, okay, he asked me if I understood the instructions.Certainly I understood the instructions…” (Transcript, p. 158). He said he breathed into the machine but was told he was not doing itcorrectly. He wanted to do it correctly because he was aware that if he did not, it could be labeled as a refusal. He thought he was doingit properly and as directed. His evidence was that the officer never used the word “blowing”.

Although both officers said ConstableGauthier took out another mouthpiece and showed him what was required by blowing on it himself (into the air, not the machine) hisresponse to whether in fact that had happened was “I don’t think so….I don’t, I don’t know.” (Transcript, p. 159). On the secondoccasion when he was brought back to the breath room and after having had a second conversation with counsel he agreed that ananalogy was given to blowing up a balloon, although he said the instruction did not include the word “blow”. He was told “just think offilling a balloon with air”.

Keeping that in mind he breathed into the machine again in the same fashion with the same result as theprevious times. He was then charged with the refusal. Although he asked for another chance, they would not give it to him. He also gaveevidence that he offered to give a blood sample, an offer which was rejected. [17] In considering the evidence of the accused I also have to take into account that the accused is a medical doctor who practices inthe City of Winnipeg as a general physician, and has done so since the mid-1980’s.

I say that because in answer to a question in directexamination about how hard he was blowing, he referenced doing breathing tests in medicine where you have to, “particularly in thebeginning, blow hard….But I thought maybe that’s different here, you know, and so I was just breathing out”(Transcript, p. 162). Thatcould, perhaps, go a way to explain a misunderstanding on the first attempt but leaves open the question of what happened on thesubsequent occasions. [18] The charge of refusal is set out in the Criminal Code in s. 254(5) which provides: 254.

(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him bya peace officer under this section. Elements of the Offence: The Crown is required to prove: 1) A proper demand; 2) Refusal or failure to provide a proper sample; and 3) Intention of the accused not to provide a proper sample. Also to be considered is the issue of reasonable excuse (see R. v. Lewko, 2002 SKCA 121 . Analysis: [19] An officer making a demand pursuant to s. 254(3) for a breath test must have both a subjective and objective belief that anoffence under s. 253 has occurred (R. v.

Bernshaw, (SCC), [1995] 1 SCR 254). [20] When police observed the vehicle come out in front of them, and then appear to try to evade them, they decided to make atraffic stop to check out the car and the driver. When Constable Gauthier noted the smell of alcohol on the breath of the driver andreceived a positive response to the question of whether or not the driver had consumed alcohol, as well as noting several indicia of whathe thought were signs of impairment, he had a reasonable suspicion as required by s. 254(2) of the Code.

The accused’s failure on theStandardized Field Sobriety Test was the objective basis of the officer’s belief that the accused had committed an offence under s. 253 ofthe Code. As a result, the accused was arrested and conveyed to the police station. I am satisfied a proper demand was made in this case. [21] Upon arrival at the police station the necessary administrative things were done, as well as the provision of a telephone for thepurpose of accessing legal counsel for advice, which was done. The accused was then taken to the breath room. [22] No proper sample was provided by the accused.

As a result he was charged with refusing to provide a sample which wasadequate to be analyzed. The issue is whether or not he intended to produce a failure. [23] A number of things have to be taken into account to determine if the proper inference to be drawn from the evidence is that the

accused intended to avoid giving a sample he was legally obligated to provide. Where there is an outright refusal for instance, whetherthe breath machine is in good working order may not be in issue. In this case it is something the Crown had to, and did prove. I amsatisfied from the evidence of Constable Gauthier that he checked the machine in use to ensure it was in working order. The accused alsonoted the constable checking the machine on both occasions he was in the breath room. The mouthpiece was also functioning asConstable Gauthier could hear the air going through it until the accused stopped blowing.

The alarm on the machine confirmed thatobservation. [24] The accused must be given adequate opportunity to provide a breath sample. He must also be made aware of the consequencesof a failure to do so. The accused in this case made two trips to the breath room. On the first occasion he was given instructions on howto blow. He made at least three attempts. There is no dispute that all the attempts were similar to each other and did not result in a properreading. Constable Gauthier says he told him what he had to do, and the accused said he understood.

The accused also testified heunderstood that he would be charged with a refusal if he did not provide a proper sample. He was brought back to the breath room asecond time, prior to which he asked for and was given the opportunity to speak to a lawyer again. When put back on the machine heblew into it in exactly the same fashion as he had done earlier. He asked for another chance and offered a blood sample, both of whichwere declined. He was charged with refusal. In the circumstances of this case, the accused was given reasonable opportunity to provide asample of his breath.

Given events as they transpired, it is purely speculative whether, or if another, or several more chances would havehad a different result. [25] The Crown must show that the instructions given were adequate and clear enough for the accused to be able to understandwhat he was to do in order to comply with the demand. The accused stated in his evidence as noted earlier, “Certainly I understood”. Atno time did he tell the officer he did not understand and ask for further information, nor ask for a demonstration.

I accept the officer gavehim a demonstration anyway, by using a separate mouthpiece himself, albeit blowing into the air rather than the machine. AlthoughEnglish is not the first language of either of the officers or the accused, there was no suggestion that language was a problem. There is aconflict in the nature of the language used, however, which is important. The officers say the accused was told to “blow” into theinstrument. The accused says the word “blow” was never used, that he was told he had to breathe into the machine which he did.

Hisevidence was that he did not know what he did wrong, that he was interrupted while he was breathing into the machine (by the officertelling him he was not breathing), that they would not explain to him what the humming noise was that he heard. He acknowledged thathe was told “Just think of filling a balloon with air” (Transcript, p. 161).

He then referenced breathing tests in medicine where one has toblow really hard at the beginning of the test but thought this might be different “so I was just breathing out” (Transcript, p. 162). [26] It was the evidence of the accused that he was cooperative and honestly attempted to comply with the demand for a breathsample. He understood what was being asked of him but was not shown what to do and was confused by being interrupted by ConstableGauthier telling him not to stop, to keep going. He denies that he was ever told to “blow”, but was told to breathe into the machine,which he did.

He did not know why the machine did not get any reading. He never at any time made an outright refusal. [27] I do not accept the testimony of the accused, and his evidence does not raise a reasonable doubt for the following reasons. Hisevidence appeared to be disingenuous. By his own admission he understood what he was to do. He never told the officer he did notunderstand and ask any questions or for a demonstration although I am satisfied he got one. From his evidence the only question he triedto ask was about the humming noise of the machine.

There was no suggestion that there was any physical disability or illness whichprevented him from being able to provide a sample. He had the opportunity to and got legal advice a second time before he was given hisfinal chance, which simply resulted in a repetition of the previous tries. He knew after the first attempt that he had not blown longenough to provide a proper sample, yet made no effort to change the way he approached the test on any of the subsequent tries despitebeing told what was required was like blowing up a balloon.

He knows how breath tests are done in medicine even if he has notperformed them himself. He would know that there has to be a sufficient expression of air to get a measureable result. [28] I am satisfied the accused was given a reasonable opportunity to respond to the breath demand and provide a sample. Therewas no language difficulty, he understood what was required and was warned he would be charged with a refusal if he did not. It ispurely speculative that any further opportunity to blow would have had any other outcome.

Based on the balance of evidence which I doaccept, I find that he intentionally failed to provide a sample of his breath as required by law. [29] The offer of a blood sample was noted, but not put forward as a “reasonable excuse”. As a matter of law such an offer cannot bea “reasonable excuse” (R. v. Taylor,[1993] B.C.J. No. 365 (C.A.), R. v. Weir, [1993] N.S.J. No. 58 (C.A.)). [30] Reasonable excuse was not raised and is not to be confused with the assessment made as to whether or not the accusedintentionally failed to provide a sample.

Generally when this is an issue, the accused admits that he committed the prohibited act but hasa reason for doing so which in the circumstances arguably justifies his actions (R. v. Taraschuk, (SCC), [1975] S.C.J.No. 122). That is not the case here. [31] There is also a charge before the Court of the accused driving while his ability to do so was impaired by alcohol. Section253(1)(

a) provides: 253.

(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraftor of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (

a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or… [32] As indicated earlier in this decision, the manner of driving first drew the attention of police to the accused’s vehicle. ConstableGauthier testified that had he not hit the brakes he might well have hit the accused’s vehicle as it exited from the Viscount Gort parkinglot. Constable Ilazo did not mention in his evidence that particular manner of driving but then he was not asked.

They had decided tocheck the car and the driver, again, as earlier described because of the right turn onto St. James Street and then the quick turn through theparking lot behind the Red Lobster and Olive Garden and the right turn then onto Richmond Street. Constable Gauthier had the primarycontact with the accused at the time they stopped the vehicle. He approached the driver’s side and spoke to the driver. As he bent over tospeak to the driver he noted an odour of alcohol. He described the driver fumbling as he was trying to get his driver’s licence and

registration. He noted slurred speech and mumbling, red and glossy eyes. Those things are what led him to make the demand for theStandardized Field Sobriety Test. [33] The results of the Standardized Field Sobriety Test gave the officer the objective grounds to make a breath demand. TheCrown sought to have considered as evidence the performance of the Standardized Field Sobriety Test as part of the evidence for theCrown on impairment. My ruling at the time was that the SFST, absent any authority he could provide to the contrary, would beconsidered as similar to that of an ASD result.

In this case, the failure established the objective grounds for making the breath demand,but the conscripted evidence obtained during the SFST, which he was statutorily required to perform, would not be admitted to prove theimpairment. [34] The indicia noted as described are not necessarily conclusive that the accused’s ability to drive a motor vehicle was impaired,but they are part of the factors to be taken into consideration.

The Crown is not required to prove any specific level of impairment butthere must be evidence that the accused’s ability to drive was impaired at least to some extent by alcohol or a drug (see R. v. Stellato, (ON CA), [1993] O.J. No. 18, C.A., affirmed (SCC), 1994 2 S.C.R. 478n). In this case, as indicated,there are indicia noted which could be consistent with an impaired ability to drive, including the initial observation of the manner ofdriving. In addition to that, I take into consideration s. 258(3) of the Criminal Code which sets out: 258.

(3) In any proceedings under s. 255(1) in respect of an offence committed under paragraph 253(1)(

a) or in any proceedingsunder ss. 255(2) or (3), evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made to himunder

section 254 is admissible and the Court may draw an inference adverse to the accused from that evidence. [35] The

section is permissive, not mandatory. There may be occasions where the reason for refusal does not amount to a lawfulexcuse but where it would be inappropriate to draw the inference. On the other hand, the provision is part of the overall legislativescheme for a purpose. There is nothing in the evidence before me that indicates drawing the statutory inference would be inappropriateand I therefore do so. [36] Taking into account the indicia noted as well as the provisions of s. 258(3), I find the accused was impaired in his ability tooperate a motor vehicle on May 2, 2009. Original signed by Judge K.M. Curtis P.J.