The accused was stopped by police on highway 401 and the police noticed an odour of alcohol emanating from the accused; his eyes were red. The accused failed a roadside screening device test, was told of his right to counsel and given a caution and breath demand. On the way to the station, the accused told the police he had consume 2 beers earlier that evening. He told the breath technician he had consumed 3 to 4 beers. At trial, the accused testified that he had actually drunk seven bottles of Labatt�s Blue beer. He further testified that he lied about his consumption to the officers because he was nervous, having never been to a police station before.
At trial a qualified expert testified that based on the evidence of the accused, the blood alcohol level of the accused would have been 55 milligrams of alcohol in 100 millilitres of blood. He further testified that in order to have been at the readings shown in the breath test, the accused would have had to drink 10.4 beers in the time the accused indicated he drank during.
The accused argued that the breathalyser had an experimental error of 10 milligrams in 100 millilitres of blood and as result the readings of the accused�s breath could have been 80,90.