Her Majesty the Queen - v. -, 2014 SKPC 188

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 188 Date: December 5, 2014 Information: 24476293 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Bruce Weinheimer Appearing: Todd Wellsch For the Crown David Kreklewich For the Accused JUDGMENT R. GREEN , J I. INTRODUCTION [ 1 ] Mr. Weinheimer is charged with driving while over the legal limit of .08 and while his ability to do so was impaired by alcohol. At the conclusion of the trial, Mr.

Wellsch said the Crown was not seeking a conviction on the impaired driving charge. [ 2 ] This is a case where the defence is seeking to employ a so-called “last drink” defence. While accepting the accuracy of the Intoxilyzer readings, it is argued that Mr. Weinheimer’s blood alcohol concentration (BAC) was not above 80 mg% at the time of

driving, because of alcohol consumed by him shortly before driving and unabsorbed into his blood at the time he was stopped by the police officer. [ 3 ] Section 258(1) (d.1) of the Criminal Code sets out the bounds of such a defence.

If breath samples have been taken showing a BAC of over 80 mg% and if the Certificate of Analyses is otherwise admissible under s. 258(1) (c), as is the case here: ... evidence of the results of the analyses is proof that the concentration of alcohol in the accused's blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 ml of blood, in the absence of evidence tending to show that the accused's consumption of alcohol was consistent with both: (

i) a concentration of alcohol in the accused's blood that did not exceed 80 mg of alcohol in 100 ml of blood at the time when the offence was alleged to have been committed, and (ii) the concentration of alcohol in the accused's blood as determined under paragraph (c) ... at the time when the sample or samples were taken; (emphasis added) [ 4 ] As a result, the issue is whether I am satisfied that there is credible evidence which tends to show that Mr.

Weinheimer’s consumption of alcohol was consistent with both: (1) him not having a BAC of over 80 mg% at the time of driving; and (2) the BAC readings contained on the Certificate of Analyses. [ 5 ] The witness for the Crown was Cpl. Kenneth McLaughlin of the Esterhazy RCMP. Mr. Weinheimer, his uncle James Weinheimer and expert witness Mary-Ellen Scott testified for the defence. II. BACKGROUND [ 6 ] Cpl. McLaughlin stopped Mr. Weinheimer at approximately 2:05 p.m. on this day in Spy Hill. The officer was parked and watched Mr.

Weinheimer come towards him, in a 40 kilometre zone, at 53 kilometres per hour, and then slow to 41 kilometres per hour. He engaged his emergency equipment and pulled in behind Mr. Weinheimer. Mr. Weinheimer went about half a block into a driveway, which turned out to be his residence. Mr. Weinheimer asked if he could take his dog into the residence and the police officer agreed. When Mr. Weinheimer returned it was 2:11 p.m. [ 7 ] Cpl. McLaughlin asked for his driver’s licence and registration, which Mr. Weinheimer produced. The officer then asked him how much he had to drink today and Mr.

Weinheimer said he had had one today. From that response, and from the fact that Mr. Weinheimer was trying to stand away from the officer, the officer suspected that Mr. Weinheimer had alcohol in his body. He then had Mr. Weinheimer come back to the police vehicle where at 2:14 p.m. he read the ASD demand to him, and a fail recording was received. He then arrested him for driving over the legal limit of .08. Before Mr. Weinheimer blew into the approved screening device, the officer noted a stale odour of liquor on his breath. [ 8 ] After reading the breath demand to Mr.

Weinheimer at 2:17 p.m., and rights to counsel at 2:19 p.m., they left for the Esterhazy Detachment at 2:21 p.m. They arrived at 2:48 p.m., Mr. Weinheimer contacted legal counsel at 2:50 p.m. and spoke for 24 minutes. At 3:34 p.m. and 3:56 p.m. he provided breath samples of 90 mg%. [ 9 ] Further to the prosecutor’s concession on this point, it was clear from the evidence of Cpl. McLaughlin that there were no articulable signs of impairment either in terms of the manner of Mr. Weinheimer’s driving or his behaviour and demeanour in the officer’s presence. III. WHAT DOES THE DEFENCE EVIDENCE TEND TO PROVE?

[ 10 ] The defence argued that there was, in this case, credible evidence which tended to show that Mr. Weinheimer’s consumption of alcohol was consistent with both: (1) him not having a BAC of over 80 mg% at the time of driving; and (2) the BAC readings contained on the Certificate of Analyses. For the reasons that follow, I disagree. Bruce Weinheimer [ 11 ] Mr. Weinheimer lives in Spy Hill, is 41 years of age and is 6’2” tall and weighs 210 pounds. He went to work at the PCS Mine in Rocanville this day, to attend a union meeting. This lasted until mid-morning and he returned to his house at 11:00 a.m.

He then subsequently took his dog to the veterinary clinic in Langenburg arriving around 12:30 p.m. He was there for 20 minutes and then went to his uncle’s place. He was at that place for 15 to 20 minutes and then left to drive back to Spy Hill, a distance that would normally take about 15 minutes. En route he stopped out behind the Carlton Trail, when a “guy from work flagged him down”. This was seven to nine kilometres away from Spy Hill. [ 12 ] Mr.

Weinheimer said the fellow from work - who was never identified by name - was looking for a place to fish, and there was a brief conversation between them, and then the fellow went to his truck and returned with two so-called go cups, which contained what he said was rum. A cup said to be similar to these go cups was filed as Exhibit D-1. [ 13 ] Mr. Weinheimer said the drink that had been poured for him was a “good sized drink” which was strong. He poured three- quarters of a can of Coke into his go cup, which left the cup just about full.

He said regarding the amount of alcohol in the cup, there was a good two inches in it before he poured in the mix. He said he drank this fast, and denied having any alcohol prior to this on that day. He estimated that he was drinking between 1:40 p.m. and 2:00 p.m. Regarding his state of sobriety, he said he felt fine when he left this location to drive back to Spy Hill. [ 14 ] In cross-examination Mr. Weinheimer admitted that he did not see the other fellow pour the drink, nor did he see what type of bottle the alcohol came from.

He confirmed that he poured three-quarters of a can of mix into his go cup, and admitted that he was not paying close attention to how much alcohol was in the glass. He said the amount was only a guess, and his best guess was five to six ounces. He, further, denied that he had ever said that he had three to four ounces this day. That question from the prosecutor, Mr. Wellsch said, referred to the level of consumption upon which a written opinion by defence expert Mary-Ellen Scott was based.

That report was provided to the prosecutor, in advance, by the defence and was not filed in evidence at the trial. [ 15 ] When asked whether it was possible he had two ounces in his glass, Mr. Weinheimer said probably not. When asked whether it could have been three or more ounces, he said “it could be”. He admitted he was not measuring the amount of alcohol, but said it was a “good chunk” of alcohol, which he believed to be rum based on what the fellow told him. He also admitted that he was not sure how long it took him to drink the alcohol. James Weinheimer [ 16 ] Mr.

Weinheimer attended at his uncle’s place at 1:15 p.m. this day. James Weinheimer said that he told his nephew he could not do an oil change for him that day, and spoke to him for about 10 minutes, much of the time being about two feet apart from him. His nephew left at about 1:30, and he could detect no signs of alcohol consumption on his nephew’s person nor was any alcohol consumed in his presence. Mary-Ellen Scott [ 17 ] Ms.

Scott was declared to be an expert and allowed to give opinion evidence in the area described as: the absorption, distribution and elimination of alcohol in the human body, including the calculation of blood alcohol concentration, and the effects of alcohol consumption in the human body. [ 18 ] Ms. Scott testified that, generally, alcohol is fully absorbed within one-half hour of consumption. However, if a large quantity

[ 18 ] Ms. Scott testified that, generally, alcohol is fully absorbed within one-half hour of consumption. However, if a large quantity is consumed in a short period of time - so-called bolus consumption - there is a spasm of the pyloric valve and as a result slower absorption takes place. She said this varies between individuals, but what happens is that the alcohol is delayed in travelling from the stomach to the large intestine where it is absorbed into the blood.

If there is bolus consumption, complete absorption of the alcohol can take upwards of an hour for a large quantity of alcohol. [ 19 ] Given the effects of bolus consumption, and assuming the alcohol was consumed between 1:45 p.m. and 2:00 p.m., and that driving occurred at 2:05 p.m. when Cpl. McLaughlin stopped Mr. Weinheimer, her opinion was that there would have to have been between 8 and 10 ounces of 40% rum consumed to both have a BAC of 80 mg% or less at 2:05 p.m. and as well BACs of 90 mg% at 3:34 p.m. and 3:56 p.m.

She confirmed that if 6 ounces of alcohol were consumed, this would not produce a reading of 90 milligrams percent at 3:34 p.m., nor obviously would 3 to 4 ounces consumed in this time give a reading of 90 mg% at this time. Analysis [ 20 ] It was clear from Ms. Scott’s evidence that between 8 and 10 ounces of 40% rum would be required - given the effects of bolus consumption - to both have Mr. Weinheimer at or below 80 mg% when stopped by the officer and at 90 mg% at 3:34 and 3:56 p.m. at the detachment. It was equally clear from her evidence that 6 or less ounces of consumption by Mr.

Weinheimer, would have been inconsistent with the readings obtained. [ 21 ] Mr. Weinheimer testified that he could only guess at the number of ounces he was given, with his best guess being between 5 and 6 ounces. Setting aside the reality that he did not see what was poured into the glass by his unnamed friend - who poured the drink in his absence and was not called to testify by the defence - I am not satisfied that Mr. Weinheimer’s evidence, together with the other evidence at trial, tends to show a pattern of alcohol consumption that put him at 80 mg% or lower when stopped by Cpl.

McLaughlin and 90 mg% when tested at the detachment. That is because:

(1) Mr. Weinheimer said there was “a good two inches” of what he believed to be rum in his glass, and that he then mixed 3/4 of a can of Coke into the so-called go cup. That is, in my view, inconsistent with the glass containing 8 - 10 ounces of rum, which Ms. Scott said would be required to have him at 80 mg% or less when stopped and at 90 mg% when tested twice at the detachment.

I say that having viewed Exhibit D-1 - a cup claimed to be about the same size as he used, which says on the bottom it contains 18 ounces - and visually estimating how much alcohol would be contained if it had two inches of alcohol in the bottom of the cup. It is clear to me that this would be nowhere near 8 to 10 ounces of alcohol. As well, it is in my view highly unlikely that he could pour three-quarters of a can of Coke into this 18 ounce cup if it already had 8 - 10 ounces of rum in it.

(2) Although I accept James Weinheimer’s evidence that Mr. Weinheimer did not appear to have been drinking in the early afternoon, even if I was to accept: (1) his “best guess” that he had 5 to 6 ounces of rum; and (2) that it was indeed 40% rum he was drinking - both somewhat dubious assumptions - that amount, according to Ms. Scott, is inconsistent with the readings of 90 mg% taken at the detachment. IV. CONCLUSION [ 22 ] Given the conclusion I have reached - that the evidence does not tend to show a pattern of alcohol consumption by Mr.

Weinheimer that was consistent with his BAC being at 80 mg% or less when stopped by Cpl. McLaughlin and 90 mg% when the tests were taken at the detachment - and applying the presumption of identity in s. 258(1)(

c) of the Code , I am not left with a reasonable doubt that Mr. Weinheimer’s BAC was above 80 mg% at the time Cpl. McLaughlin stopped him. [ 23 ] He is found guilty of driving over .08 (count #1) and, given the lack of evidence of impairment and the concession by the prosecutor, not guilty of impaired driving (count #2).

R. Green, J