Charge Dismissed -- Refusing to provide a breath sample

In a case where the client was charged with refusing to provide a roadside breath sample, on an allegation by a police officer that the client only pretended to provide a sample, the charge was dismissed at trial. During cross examination by defence, the credibility of the police witness was seriously put into question when he was confronted with information which indicated that the problem was actually with the breath machine -- not with the way the client was blowing into it.

The officer claimed in his testimony that the machine showed a certain error code when the client gave or attempted to give a sample, and that this error meant that the client was not blowing hard enough. The officer concluded that the client was not blowing hard enough because he was only pretending to provide a a breath, and was thereby "failing or refusing to provide a breath sample".

In cross examination, Mr. MacDonald confronted the officer with the manual for the breath machine, the police training guide for the breath machine, and the Centre for Forensic Science guidelines on using the machine, all of which indicated that the machine cannot show the error code that the officer claimed to have seen.

After the officer was given a recess in order to read these materials, Mr. MacDonald's cross examination continued. On returning to the stand, the officer tried to change his evidence by now claiming that he actually saw one of the error codes set out in the manual (the one which indicates a person is not blowing hard enough, of course), as opposed to the non-existent error code that had previously testified to seeing. When the officer said this, the trial judge himself began questioning the officer about this suspicious revelation. The Crown only needed a short recess before asking that the charge be withdrawn.