B.C. woman acquitted of failing to provide breath sample because police did not make demand 'immediately'

A B.C. judge has acquitted a Vancouver Island woman of failing to provide a breath sample because police waited several minutes before asking her to blow into an alcohol-screening device after they suspected she was impaired. The judge also found "obvious inconsistencies in the police evidence" in the case.

The judge also found "obvious inconsistencies in the police evidence" in the case prior to ruling the officers' delay in demanding the breath sample meant the woman was no longer legally obliged to provide it.

In a decision handed down last week, provincial court judge Ted Gouge acquitted Joanna Brooker, of Duncan, B.C., of failing to provide a breath sample because the Criminal Code requires such a demand be made "immediately" after police have sufficient evidence to suspect someone was driving while impaired.

The judge tossed out the charge when he found that upwards of 10 minutes had passed between when the officers had sufficient grounds to demand a breath sample and when the demand was actually made.

According to the decision, RCMP Const. Mongraw was on patrol near Chemainus, B.C., on Jan. 8, 2020 when the radio dispatcher informed her of an incident at a nearby pub.

Staff at the pub had reportedly refused to serve alcohol to a woman because she appeared intoxicated. The woman allegedly got back in her car and drove away, but not before someone took down her description and licence plate number.

The dispatcher provided the vehicle's registered address to Mongraw, who drove to the home and found the vehicle in the driveway with its interior lights still on, she testified.

The officer knocked on the front door and was answered by Brooker and a man who were arguing, she said. The woman had red, glassy eyes and a strong smell of alcohol on her breath, she said.

Another police officer, RCMP Const. Wreggitt, testified that he arrived at the home and found Mongraw speaking with the man and Brooker, with whom he had previous dealings.