Her Majesty the Queen - v. -, 2012 SKPC 111

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 111 Date: July 09, 2012 Information: 37291330 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Eduardo Jajardo Medel Appearing: L. Chambers For the Crown J. Hillson For the Accused JUDGMENT R.D.

JACKSON , J I INTRODUCTION [ 1 ] The accused is charged on December 4, 2011 with having care or control of his motor vehicle while impaired by alcohol and without reasonable excuse, failing or refusing to comply with the demand for a breath sample into the Intoxilyzer. [ 2 ] There is no dispute that the accused was in care or control of his motor vehicle at the material time, the only issue being whether his ability to operate the motor vehicle was impaired by alcohol. As far as the failing to provide a breath sample, again, the

evidence demonstrates the accused failed to provide a proper sample after having been given nine successive opportunities to do so. The sole issue for determination on this charge is whether he intended such result. [ 3 ] The Crown called the investigating officer, Constable Vanthuin and the Intoxilyzer operator, Constable Kluz. The Defence called the accused and his physician, Dr. Yellepeddy Nataraj.

II DETERMINATION Care or control while impaired [ 4 ] Constable Vanthuin testified that he came across the accused’s vehicle parked in the left turning lane coming onto Idylwyld Drive in Saskatoon from 39 th Street at approximately 7:40 a.m. He noted the vehicle not to move through a light change and that it was blocking two lanes of oncoming southbound traffic on Idylwyld Drive. [ 5 ] When he approached he vehicle, which was running, Constable Vanthuin noted the driver to be asleep so he knocked hard on the window with his hand.

Receiving no response he then knocked on the window with his flashlight and shone the flashlight directly into the eyes of the driver, without being able to rouse him. He continued in this vein for approximately five minutes including loud verbal commands which eventually had the desired effect of waking the driver. [ 6 ] The driver then appeared to remove his foot from the brake which caused the vehicle to lurch ahead.

He then attempted to take the keys out of the ignition but could not do so because the vehicle was still in drive. [ 7 ] When the accused exited the vehicle Constable Vanthuin detected an odour of alcohol on his breath and that he had red bloodshot eyes. The accused admitted to having a “few drinks” at his parents’ house. [ 8 ] The accused was arrested for impaired driving, handcuffed and placed in the rear of the patrol car.

The accused took exception to being handcuffed and told Constable Vanthuin that he was a government official (he was not) and that he would sue him for such treatment. [ 9 ] In response to rights to counsel, the accused stated that he had a lawyer in New York, the number for which he provided to Constable Vanthuin. When Constable Vanthuin called the number and identified himself, the call recipient hung up. He then called again and attempted to explain the situation.

At this point, the accused indicated that the number was actually for his sister, not a lawyer. [ 10 ] The accused subsequently spoke to Legal Aid duty counsel at the Detachment and acknowledged his call was “okay”. He then added “I’m going to call my own lawyer tomorrow. I’m not going to wake him up today”, notwithstanding it was approximately 9:00 a.m. at this point. [ 11 ] The Intoxilyzer operator Constable Kluz testified that the accused appeared to have red eyes, dry pasty lips and a generally dishevelled appearance.

Further, he admitted that he had drank some Coors Light beer approximately two to three hours earlier. [ 12 ] For his part, the accused testified that he only had his eyes closed maybe five seconds - not five minutes and that he actually saw Constable Vanthuin coming toward him and opened his window immediately. He stated that he had been up since 6:30 that morning doing housework and that he had taken his medication and some cold medicine, Nyquil and Neo Citran. He offered hearsay evidence that his doctor had told him subsequent to this incident that this was a “bad combination”. However this was not canvassed

with his doctor when he testified subsequently at the trial. He denied any drinking whatsoever other than two to three days prior to this incident “. . . because I get a reaction with alcohol when I drink together with my medicine.” [ 13 ] Mr. Medel also testified that he felt dizzy and was hallucinating while behind the wheel. As for his red eyes, he explained that he had been in the construction industry for 25 years and that he had chronic red eyes as a result. [ 14 ] Mr.

Medel also did not deny that he gave his sister’s number in New York to the officer claiming it was his lawyer nor that he was going to sue him for the treatment he had received. On this latter point he stated “the only thing I really regret is they really handcuffed me with force” and that he was not a criminal and he had never broken any law since birth in his native Philippines and especially in Canada. In cross-examination however he acknowledged he had in fact been convicted in 1995 in Canada for impaired driving.

He also conceded that alcohol or his various medications may have affected his memory of the incident. [ 15 ] The Court does not accept Mr. Medel’s evidence as credible concerning the circumstances of the stop and his general condition. For example, if he had only been asleep for a period of five seconds, he would not have sat through an entire light change blocking two lanes of traffic on Idylwyld Drive. Further, he made no mention of feeling dizzy or hallucinating to Constable Vanthuin nor did his subsequent behaviour in the patrol car corroborate any such difficulties or sensory detachment.

Rather, he appeared to understand and respond to the police warnings and rights to counsel. He also had the presence of mind to threaten to sue the officer because of being handcuffed, a point which he reiterated and emphasized at trial. He admitted that his memory of the incident may have been affected by alcohol or his medications that he had been taking and further that the consequence of being convicted of this offence was very personally severe and challenging for him.

He also appeared either to have forgotten about his previous criminal conviction or was being evasive about it in his testimony. [ 16 ] Constable Vanthuin by comparison gave straightforward testimony without hesitation or any apparent inability to recall the events of this day. Several of the remarks that he recalled the accused stating were in fact corroborated by the accused himself.

The Court prefers and accepts his evidence concerning the circumstances of the stop and the condition of the accused. [ 17 ] On the whole of the evidence, the Court is satisfied that the accused’s ability to operate his motor vehicle at the time he was stopped was impaired by alcohol. This conclusion is supported by the following:

a) the accused’s motor vehicle sat through an entire light cycle without turning onto Idylwyld Drive blocking the southbound lanes of traffic;

b) the accused was asleep at the wheel and could not be roused for a period of five minutes notwithstanding loud banging on the window with the officer’s hand and flashlight, shining the flashlight into his eyes, and loud verbal commands;

c) the accused exhibited an odour of alcohol emanating from his breath;

d) the accused was belligerent in the patrol car threatening to sue the police officer because he was handcuffed and that he was a “government official”, which in fact he was not;

e) the accused advised the officer that he had a lawyer in New York and permitted the officer to place not one but two calls to the number before admitting that this was in fact his sister and not a lawyer;

f) the accused spoke to Legal Aid and then announced that he had his own lawyer but that he would call him the next day preferring not to wake him today notwithstanding that it was approximately 9:00 a.m.

As indicated, there was no other credible evidence which would raise a reasonable doubt that the accused’s condition and signs of impairment were caused by anything other than ingestion of alcohol.

Although the accused was not “falling down drunk” he certainly exhibited more than a slight degree of impairment by alcohol of his ability to operate his motor vehicle. [1] Failing to provide breath samples [ 18 ] The Defence conceded there was no issue as to the grounds to make the breath demand. [ 19 ] The accused was thereafter given nine successive opportunities to provide a breath sample after which the Intoxilyzer “timed out” meaning this was the maximum amount of attempts the machine would permit. [ 20 ] Constable Vanthuin was present for all nine attempts.

His observations of the accused were to the effect that it did not appear he was blowing into the instrument. He noted the accused to provide varied excuses such as his age of 54 years and being on some medications relating to blood pressure and diabetes. At no time did he observe, note or recall the accused expressing any difficulties breathing nor did the accused at any time ask for his asthma inhaler. [ 21 ] At the conclusion of the attempts, because the accused stated he was trying to cooperate, Constable Vanthuin testified that he then made a demand for a blood sample.

The accused however declined to accede to this demand stating “I am not going anywhere.” At trial, Constable Vanthuin did not agree that this meant he necessarily believed the accused but rather he was going to give him the benefit of the doubt if he said he couldn’t provide a breath sample. [ 22 ] The Intoxilyzer operator, Constable Kluz, testified that for each attempt he explained and demonstrated how to properly provide a sample. It appeared however that the accused was not making any effort to take a large breath in as he was instructed to do.

Rather, he observed that there was no chest rise or sound of air being taken in but rather the accused appeared to be simply protruding his stomach. At one point, the accused attempted to breathe in, rather than out, when his mouth was on the mouthpiece. He would also only blow out for a very brief period of approximately half a second which Constable Kluz repeatedly advised was not sufficient. [ 23 ] After the accused’s sixth attempt, he advised Constable Kluz that he had high blood pressure and diabetes and that he was on medications for both.

Further, because of his age, he was having difficulty providing samples. Constable Kluz recalled no discussion whatsoever concerning respiratory issues, asthma or anything of the like. He did not observe the accused either to be having any difficult breathing or to be out of breath. [ 24 ] The accused testified that he suffers from high cholesterol and blood pressure, diabetes and bronchial asthma for which he has carried an inhaler since 2009. He conceded that he asked for his medications but was uncertain that he made any mention of his inhaler during the course of his attempts to blow. [ 25 ] Dr.

Nataraj confirmed the accused’s condition of bronchial asthma which had been diagnosed about two years ago. This ailment he explained can cause shortness of breath which can worsen with exertion, the symptoms of which can be controlled by use of an inhaler. Blowing for a sustained period would pose a problem he stated although he was not familiar with what would be required for the Intoxilyzer samples. [ 26 ] In cross-examination, Dr. Nataraj testified that bronchial asthma is a chronic condition which can flare up sometimes for no apparent reason.

Some of the contributing factors to this would be inhalants such as dust particles, carbon monoxide, pollen or other such naturally occurring factors. He also cited cigarettes as being a problem in this regard. Otherwise, the patient would appear quite normal. He stated further that he has seen people having shortness of breath because of bronchial asthma and that it is quite apparent that they are having difficulties. At that point he said they would require their inhaler to get back on track. He agreed that a person like Mr. Medel could have many days when he was breathing normally. Finally, Dr.

Nataraj testified that he saw Mr. Medel on December 6,

2011, (two days after being charged) for problems relating to his diabetes. He did not complain at that time of any breathing difficulty nor did he complain of any recent asthma attack. [ 27 ] The Court is satisfied that the accused has a condition known as chronic bronchial asthma. However, according to Dr. Nataraj, this is a chronic condition which only presents breathing difficulty during an asthma “flare-up”, the symptoms of which could be then treated by use of an inhaler. The Court is not satisfied that such conditions were in existence at the time the accused was to provide breath samples on this occasion.

Rather, the Court is satisfied beyond a reasonable doubt that the accused wilfully failed to provide a sample, not that he was incapable of doing so, the reasons for which are as follows:

a) he did not appear to be taking in adequate deep lung breaths necessary to provide a proper sample;

b) he appeared to exhale for only a very short period perhaps half a second on each occasion;

c) he was observed during one attempt to breathe in rather than blow out into the instrument when his mouth was on the mouthpiece;

d) he was not observed at any time to be having any respiratory issues or shortness of breath;

e) he did not advise at any time that he had an asthmatic condition or that he was having difficulty breathing. Instead, he made specific reference to unrelated medical conditions including high blood pressure and cholesterol and his age of 54 years as reasons why he was not able to give proper samples;

f) he did not at any time ask for his inhaler which he testified had been left in his vehicle;

g) when given an option to provide a blood sample he declined to do so. Although the accused is not charged with this offence, the Court infers from this evidence the lack of good faith of the accused relating to a genuine inability to provide a proper breath sample;

h) he did not complain of any recent asthma attack or breathing difficulties when he saw his doctor on December 6, 2011, only two days after being charged on December 4. Rather, the appointment dealt with his diabetes. III CONCLUSION [ 28 ] The evidence supports beyond a reasonable doubt that the accused had care or control of his vehicle while his ability to operate was impaired by alcohol and that he failed without reasonable excuse to provide samples of his breath. Accordingly, the Court will hear submissions as to the appropriate disposition concerning conviction and sentence. _______________________ R.D. Jackson, J

[1]R v Stellato, (ON CA), [1993] OJ No. 18 (CA), affd. (SCC), [1994] 2 SCR 478 (SCC)