R. v. Heide, 2011 MBPC 61

CITATION: R. v. Heide , 2011 MBPC 61 Date: 20110908 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) M. E. Carlson, ) for the Crown ) and ) ) ) Derrick Heide ) B. S. Newman, Accused ) for the Accused ) ) ) Reasons for Decision delivered: ) September 8, 2011 ) Curtis, P.J. [ 1 ] Derrick Heide is charged that on or about December 31, 2009 he failed/refused a demand to provide a sample on an Approved Screening Device (ASD). [ 2 ] The issue is whether in law there was a refusal/failure to provide a sample.

Background [ 3 ] The accused and his vehicle came to the attention of police after it pulled out of a parking lot at Earls Restaurant on Main Street in Winnipeg. The vehicle was northbound in the second lane from the east curb. Police, in this case Patrol Sergeant Woychyshyn, were also headed northbound, approximately two-thirds to one city block behind the accused’s vehicle. After travelling approximately two blocks the vehicle was approaching a red light at Graham Avenue where traffic was already at a stop in both his lane and the lanes to his left.

He moved into the east curb lane which had no traffic in it ahead of him. He made the move without indicating it by using a signal.

At that point Sergeant Woychyshyn came up behind the vehicle and made a traffic stop. [ 4 ] Sergeant Woychyshyn explained that he had been called out from his regular duties as a street supervisor to supervise a project whereby police were targeting drinking drivers. (This was New Year’s Eve.) They were concentrating on people leaving from premises where they were aware liquor was sold such as hotels and restaurants. [ 5 ] Sergeant Woychyshyn attended to the driver’s side of the vehicle and asked to see the accused’s driver’s licence which was produced without problem.

He asked the accused if the address was correct and noted a faint odour of alcohol. He also gave evidence that the accused’s eyes were bloodshot and glassy. He asked the accused if he had had anything to drink, to which the accused replied he had had one rye and coke with dinner. The officer asked him to accompany him back to the cruiser car for the purposes of blowing into an ASD to see if he could safely continue to drive. The officer said quite candidly in his evidence that he expected the accused to pass the test.

He did not think the accused was impaired but because he had liquor on his breath he wanted to ensure that he was safe to drive. [ 6 ] The accused said he would give a sample and the officer explained the procedure to him. On the first attempt there was no

result. Sergeant Woychyshyn testified he can tell when an accused is providing a sample because the unit buzzes. He also holds the unitwith his hand under it because there is a hole which vents a small amount of air which can be felt when a sample is being given. Afterthe first attempt yielded no result, he took a mouthpiece and demonstrated for the accused how to provide a sample. He placed anothermouthpiece on the device and provided it to the accused for a sample. No sample registered.

The officer then demonstrated how toprovide a sample by blowing into the machine on another separate mouthpiece one more time and told him that he would have one morechance to give a sample or he would be charged with refusal. A new mouthpiece was provided and the result was the same. He wascharged with refusal. [7] Prior to being stopped by police the accused gave evidence that he had been at Earls on Main Street for dinner with hisfiancée, her daughter and her daughter’s friend. He had had one rye and coke there and that had been the only alcoholic drink he had hadthat day.

He, in fact, was the designated driver. When they pulled onto the street they were heading home to chaperone a party for hisfiancée’s daughter and her friends. [8] 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 SCR 742, SCJ No. 26, which provides: 1. If the evidence of 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 still left in reasonable doubt by it there must be anacquittal; and 3.

Even if not left in doubt by the evidence of the accused the trier of fact must still ask whether they are convinced beyond areasonable doubt of the guilt of the accused on the basis of the balance of the evidence which they do accept. [9] There is little conflict in the evidence with respect to the context of what happened that night. By that I mean the fact that theaccused’s vehicle did come out of the parking lot at Earls on Main Street and he conceded he may not have used his signal light when hechanged lanes.

The number of opportunities he was given to provide a sample and the two demonstrations by the officer are agreed. Atissue is whether or not he refused. [10] The accused is 37 years old and at the time was a letter carrier with Canada Post. Prior to the date in question he and hisfiancée had been merging their households by moving her possessions into his home which they were now sharing. He indicated he hadbeen moving boxes and furniture the night before this incident until about 1:00 or 2:00 in the morning. He then started work at 7:00 inthe morning and got off at around 2:30 or 3:00 in the afternoon.

He did not have any rest prior to keeping their reservation at Earls. [11] The accused testified that he was excited about being pulled over by the police in the sense that he had never been pulled overbefore by police for anything. He was not concerned with respect to providing a sample because he had only had the one drink and knewhe would not fail the test. He said that when he entered the police car he had to maneuver to get into the rear passenger seat because theseat was pushed all the way back.

He did not have a clear view of everything the officer was doing, i.e., taking the mouthpiece out of thepackaging and putting it on the device. His description of how the officer extended the device to him by the officer turning and restinghis hand with the device pointed towards him leaning on the shoulder of the bucket seat was consistent with the officer’s evidence, buthe said that the device itself was angled upwards so that he could not put his mouth on the device. He also described it at one time asbeing approximately forehead high and described him pulling himself up by the seat to try to reach the device.

He also said, however,that he did get his mouth on the device and that on the first two occasions the mouthpiece (or as he described it “the tip of the device”)came off in his mouth and he handed it to the officer. The officer denies that the mouthpiece fell off the device on either of the first twooccasions. The accused testified that on the third attempt the mouthpiece stayed on the device. He says that he blew for three or fourseconds. The result, however, was the same as the first two attempts in that there was no reading at all on the device.

There was no aircoming from the bottom and no buzzing. [12] The accused testified that he understood the instructions given by the officer that he had to provide one long continuous breath.He denied, however, getting an instruction that he had to seal his mouth around the mouthpiece while blowing into the device so as toprovide a good sample. [13] Sergeant Woychyshyn gave evidence with respect to the Approved Screening Device that he used. In fact, he brought it to courtwith him along with the mouthpieces used by the accused on the date in question and they were entered into evidence as Exhibit 1.

Hetestified that the equipment was in good working order and that he was a qualified operator and calibrator and had calibrated theequipment himself. He also testified that when he demonstrated for the accused how to provide a proper sample he got appropriatereadings from the device on both occasions.

He also gave evidence that he inspected the mouthpieces to ensure that there was noobstruction to them both at the time and demonstrated that to counsel as well on the day of the trial. [14] The charge of refusal is set out in the Criminal Code in s. 254(5) which provides “Everyone commits an offence who, withoutreasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section.” Elements of the offence [15] 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. [16] Also to be considered is the issue of reasonable excuse (see R. v. Lewko, 2002 SKCA 121 ).

[17] An officer making a demand pursuant to s. 254(2) for a breath sample must have reasonable grounds to suspect that a personhas alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle. There is noquestion that in this case the officer had a suspicion that the accused had alcohol in his blood as evidenced by the odour of liquor on hisbreath and the accused’s own admission that he had had an alcoholic beverage. [18] No proper sample was provided by the accused. As a result he was charged with refusing to provide a sample.

The issue iswhether he intended to produce a failure. [19] A number of things have to be taken into account to determine if the proper inference to be drawn from the evidence is that theaccused intended to avoid giving a sample he was legally obligated to provide. This is not a case where there is an outright refusal interms of words being said but, rather, a situation where it has to be determined if a proper inference to be drawn from the actions of theaccused is that he intended to refuse to provide a sample. [20] The accused must be provided an adequate opportunity to provide a breath sample.

He must also be informed of theconsequences of a failure to do so. I am satisfied from his evidence that the accused was aware of the consequences of failing to providea proper sample. In fact, he testified that he became even more anxious to provide a proper sample when informed of the consequences. [21] Three opportunities were given to the accused to provide a sample. In his evidence he says that on the first two attempts the tipof the device fell off and that was the reason that he was unable to give a proper sample.

He also says that the device was held too highfor him to be able to properly get his mouth around it and that is why no proper sample was given. He told the officer that he has asthmawhich might affect his ability to give a sample, and after the second failure to register he told the officer he was also tired and run down.He also testified the reason he might not have been able to give a sample was that he was intimidated and scared after the secondunsuccessful attempt when he was told of the consequences of refusing or failing to give a sample.

He agrees that the officerdemonstrated to him after both the first and second attempts how to provide a proper sample. He says on the third occasion themouthpiece did not come off and he blew for at least three or four seconds. He said he knew he had to blow as hard as he could in onecontinuous breath. He does not know why he failed to get a reading. He says he offered a blood sample and a urine sample, offers whichwere declined by the officer.

He also says he would have been prepared to give a sample on the mobile breathalyzer which stopped bybriefly if he had known he could. (The officer pointed out that he had no grounds to make that demand, and the accused would still havehad to deal with the failure/refusal on the ASD.) [22] In his evidence the accused said that he understood the instructions of the officer and attempted to comply. At no time did hemake an outright refusal. He says the first two times the tip fell off the device but that the third time he was sure he had done what wasneeded to provide a sample. Yet no sample registered.

There is no suggestion Sergeant Woychyshyn was mistaken when he said thedevice registered the proper results when he himself demonstrated how to blow on the machine. [23] The attempts made by the accused were described and demonstrated by Sergeant Woychyshyn as similar to a “puff” of airwhich registered nothing on the machine, not even an indication of an inadequate sample.

Although he had the demonstration, and saysthe mouthpiece was not a problem on the third try, the description of his blowing and the result were exactly the same as the first twotimes. [24] Defence counsel referred to Justice Scurfield’s decision in R. v. Dolphin, 2004 MBQB 252 . There the accused madefour attempts to blow into the ASD. No result showed on the machine. The instant case can be distinguished.

Central to JusticeScurfield’s decision in that case appears to be the fact that there was no evidence before the Court that either officer had tested themachine or checked the mouthpiece for obstruction before it was put into use. At paragraph 12 he notes: In “failure” cases, the inference from the failure to register an adequate sample by a device is difficult to overcome if the Crown provesthat the device was in good working order. In contrast, direct evidence from police officers that an accused appeared not to be blowingproperly is inherently less reliable.

As such, it must be carefully evaluated. [25] Counsel’s argument is not that the device itself was not in working order, but that the officer was not able to accurately andreliably attend to the divided tasks of both observing the accused and reading the digital display on the device given his position in thepolice vehicle. As referred to above, the accused says on the first two attempts the “tip of the device” came off in his mouth and at leaston the first occasion he handed it to the officer.

The officer denied that occurred. [26] In looking at the evidence I have to first look at the evidence of the accused. [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. For instance, he was coy in response to the Crown’s questioning him about whether he had movedfurniture as well as boxes the night before, admitting only to moving some boxes until he was pressed by the Crown. He then concededhe moved furniture as well.

Another example (among others) was in answer to the Crown’s question about signaling. He responded “I’mnot, not going to say I did or I didn’t but I’m, I’m—I may have signaled but it–when I turned over it may have clicked off when I turnedin, because the vehicle has a tendency to do that.” (Transcript, page 68). Shortly after that he replied “You know what, I could—I mayhave forgotten. I told the officer that right away.” (page 68). He first suggested it might have been the vehicle that was at fault then saidhe told the officer right away he forgot to signal.

With respect to the ASD demand, he understood what he was required to do and statedhis intent to be cooperative. The fact is that although the instructions were given to him and a demonstration was given on two occasions,he still failed to give a sample. His attempts were exactly the same on each occasion. He says he was cramped in the back seat and had tohaul himself up to reach the mouthpiece because of the angle at which it was being held by the officer. He described it as being aboutlevel with the top of his head. He says that the tip of the device fell off twice.

On the third occasion the mouthpiece stayed on and heblew for three or four seconds. Yet on each occasion, including the third where the mouthpiece was not a problem, the result was thesame. No sample registered, proper or otherwise. His explanations for not giving a sample are as follows: • The mouthpiece kept falling off. • He was asthmatic and worn out at the time.

• He had been working all day and had been moving boxes and furniture the night before. • There were so many things going on and he had never done this before so he was excited and confused. • He was intimidated and scared. • He was coming down with the flu. The following week on January 7, 2010 he went to the doctor and provided a prescription confirming the medication he was to take. • The offer of a blood sample was noted. As a matter of law such an offer cannot be a “reasonable” excuse ( R. v. Taylor , 1993 BCJ No. 365 C.A.; R. v. Weir , 1993 N.S.J.

No. 58 C.A.). [ 28 ] In the context of the whole of the evidence I also have to take into account the testimony of the officer (much of which is not disputed by the accused). The accused says the tip of the device came off in his mouth on the first two attempts. The officer says it did not. He also said that if it had he would have noticed given the way he held the ASD, and if he had been told there was a problem he would have dealt with it at the time. He was candid and straightforward in his evidence, testifying that he did not think Mr.

Heide would register a “fail”, but with the odor of alcohol he had the obligation to make sure he was fit to drive. He was thorough in describing the steps and process he followed to the extent that he brought the machine and mouthpieces used to court for demonstration purposes. There is no question that no readings were obtained. I accept the officer’s evidence with respect to the circumstances of the ASD testing. [ 29 ] Is there a reasonable excuse?

The accused filed a prescription and testified that he had to be off work for several days the following week due to a bad case of the flu and a partial lung infection. Through counsel he asks the question as to whether or not this combined with his asthma could amount to reasonable excuse in terms of his intention.

Taking into account the accused’s evidence that he had been moving boxes and furniture until the early morning hours of that particular day and then had gone to work from 7:00 a.m. to 2:30 or 3:00 p.m. as a letter carrier, and then had been fine to go to dinner which he described in detail as a New York strip steak, garlic mashed potatoes and julienne vegetables with no apparent distress having caused him not to enjoy it or have it impair his physical abilities over the previous 24 hours, I am not prepared to speculate about something that happened at a subsequent time.

The officer’s evidence that he observed no shortness of breath, coughing, sneezing, or nose blowing was neither challenged nor contradicted. It would appear the illness, while perhaps nascent at the time, did not by his account become a problem until sometime later. Any impact on his abilities at the time he was stopped would be speculative and not supported by the evidence. [ 30 ] In the end his evidence is simply not credible.

I do not know what reason there might be behind the accused’s failure to provide a sample, but I am satisfied that despite his stated intention to the contrary he deliberately did not provide a sample as he was required. A conviction is entered on the charge of refusal pursuant to s. 254(5) of the Criminal Code . Original signed by Judge K.M. Curtis P.J.