Giselle's Case — Refuse Breath sample — Police Report

Client:  Giselle, Accused
Complainant:  Toronto Police Force, 42 Division
Charge:  Refuse to Provide Breath Sample

Police Report:  On Saturday, November 18th, 2000, at approximately 12:05 a.m., the accused before the Court, Giselle C., was operating a motor vehicle, a 2000 Chrysler, on Danforth Road. She was stopped at a R.I.D.E. spot check where she admitted to drinking wine and there was a sweet smell of an alcoholic beverage on her breath. The Officer then formed a reasonable suspicion that the accused had alcohol in her body.

At 12:07 a.m., the Officer made a demand to the accused to provide forthwith such a sample of breath, which, in the opinion of the arresting Officer, was necessary to enable a proper analysis of the breath to be made by means of an approved screening device, a Drager Alcotest 7410 GLC, and to accompany the Officer for the purpose of enabling such sample of breath to be taken.

At 12:09 a.m., the accused was given the opportunity to provide a sample of breath. At this time, the accused stated:  "I won't be giving you a sample." The law was then explained to her. She was given 6 attempts to provide a sample, it being demonstrated to her once, and each time she failed to provide a suitable sample due to short blows and obstructing the mouth piece with her tongue. She claimed to have bronchitis, but was not out of breath or having any speech problems.

At 12:18 a.m., she went to the Mobile Breath Station that was parked on an adjoining lot. She produced a bottle of Advil and prescribed medicine "Biaxin 250" that were issued on 5th October 2000 for 7 days, 14 tablets, 1 to be taken twice a day, but 8 tablets were still left.

At 12:24 a.m., she was again given an opportunity to provide a sample into a different device. She blew intermittently and an error was recorded. The Officer demonstrated how to use the device and offered her one last attempt. She blew, puffing her cheeks out and air could be heard escaping from around the mouth piece. There was no obstruction in the mouth piece.

In the opinion of the Officer, the Accused refused, and thus failed to provide a proper sample of breath without a reasonable excuse.

The accused was issued a Form 9 Appearance Notice and was charged accordingly.

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