Six minutes too long to test suspected drunk driver

Dan Ferguson - Surrey North Delta Leader Published: September 05, 2010 9:00 AM

By waiting six minutes, a Surrey Mountie waited too long to decide to administer a breathalyzer test to a suspected impaired driver, a Surrey Provincial Court judge has ruled. In January of 2009, a Surrey RCMP constable pulled over a vehicle. The officer could smell alcohol on the driver's breath and the driver admitted to having two drinks in the previous two hours. When the driver blew into a portable breath alcohol testing device, the fail warning light came on. The officer then arrested the driver for impaired driving. Then the Mountie searched the driver, put the driver in his police car, then searched the driver's car.

After reading the driver his rights, the officer made a formal demand as required by law that the driver provide a sample of his breath to a more precise breathalyzer at the police station. It was six minutes from when the driver failed the roadside test to when the officer made made his demand for a breath sample. The driver's lawyer argued that violated the law that says the demand must be made "as soon as practical." Judge James O. Wingham agreed, noting the B.C. Supreme Court has already ruled a seven-minute delay violated the same law. The issue is not the exact amount of time, Wingham added, but whether the actions of the police officer would have prevented them from making the demand sooner. In the Surrey case, the judge said, there was no reason why the officer couldn't have made his demand sooner. While the delay was "relatively short" the judge said "the evidence does not establish that the delay in making the demand was necessary or reasonable" and dismissed the charges. The written reasons for the June 1, 2010 decision by the judge were posted online on Thursday.