R. v. Lomenda 2014 SKQB 77 – this case was an appeal by the defence from a conviction of driving while his blood alcohol content exceed 80 milligrams in one hundred millilitres of blood. He appealed that conviction on the basis that evidence obtained as a result of the use of an approved screening device (an “ASD”) pursuant to s. 254(2) of the Criminal Code should have been excluded, as the sample of his breath was not taken “forthwith” as required by ss.254(2)(b).
The officer stopped the vehicle to check the accused’s driver’s licence, vehicle registration, and sobriety. The officer approached the driver’s side window, and asked the driver for his driver’s licence and registration. The officer put his head into the driver’s window, toward Mr. Lomenda, and asked him if he had been drinking alcohol. Mr. Lomenda responded: “Just one”. The officer said Mr. Lomenda was looking sleepy and asked whether he had more than one drink. Mr. Lomenda answered “no”, and when asked why his eyes were red, replied: “My eyes are always red”.
The officer asked him to step out of the vehicle, and to come back to the space between the two vehicles. He then asked Mr. Lomenda, further, about his drinking, and Mr. Lomenda responded: “I had one about 15 minutes ago”, and then denied drinking other alcohol that day. When asked if he was feeling ill, he said he was “not feeling great”, and, when asked about medication, said he was taking dilantin. Mr. Lomenda further admitted that he was drowsy. The officer told Mr. Lomenda to come with him to the police vehicle to take a roadside test. There was a brief discussion about whether Mr. Lomenda had taken an Approved Screening Device (ASD) test before and then the officer read the ASD demand to Mr. Lomenda.
Mr. Lomenda said he understood the demand. The officer then asked: “You said you had your last beer 15 minutes ago, could it have been sooner?” Mr. Lomenda responded: “Well, possibly, I don’t know, I wasn’t timing it.” The officer then said he was going to wait 15 minutes. Mr. Lomenda told the officer that he was at his parents’ place and that he “had more than one”. When the officer suggestted he looked sleepy, Mr. Lomenda said: “My eyes are always red”. The officer then asked: “How many did you have?” Mr. Lomenda responded: “About four over a two hour period”. The officer then asked when his last drink was, and Mr. Lomenda said: “Forty-five minutes before you stopped me.” The officer presented the ASD to Mr. Lomenda approximately 13 minutes after the demand was read and a fail reading was obtained approximately one minute later.
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