R. v. Stewart

[1993] O.J. No 721

Facts

ON CJ

This was the trail on a charge of operating a motor vehicle with a blood alcohol conent over 80. The arresting officer stopped the accused on observing his driving in a specious manner. The accused claimed to have drunk a couple of beers. At trail he admitted he consumed six beers. After failing an ALERT test he was arrested and charged with driving over 80. A breathalyzer test was conducted. The accused argued the evidence of the technician as to analysis of the breath sample was in admissible as the alcohol standard solution used in the samples was not suitable. An exper for the defence testified that the samples used fell outside of acceptable parameters of the Alcohol Test Committee. He also presented evidece that given the accused's rate of elimination his blood alcohol level at the time of testing was under 80.

Reasons

ON CJ

The accused was convicted because the breathalyzer readings were admissible and the Crown was not required ot prove that the alcohol standard solution was suitable. The evidence of the expert was to the solution did not constitute evidence to the contrary within section 258 1c of the Criminal Code. The evidence went to suggest the unsuitabilty of solution leading to inaccuracy but not evidence as to the extent of such inaccuracies. Considering the observations made of the accused, the breathalyzer results proved a level over the permissible limit

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