The officer forgot to make a breath demand at the roadside. The breath technician made a demand 40 minutes later at the police station. Since the breath demand was not made as soon as practicable, the Crown was not entitled to rely on the presumption.
The Crown argued, that the breath demand by the technician could cure the earlier error. The Crown found support in two cases called R. v. Dhaliwal, [2005] O.J. No. 1129 (SC), and R. v. Chilton, [2009] O.J. No. 3655 (SC). In those cases the courts held that the technicians' demands were made as soon as practicable because they were independent demands made on the technicians' 'own' formulation of reasonable grounds.
The appellate court concluded that the timeliness of the demand was a factual matter to be determined on a case specific inquiry. The decision by the trial judge that the demand was not made as soon as practicable was within his discretion to make and the acquittal was upheld. R. v. Laws, 2011 ONSC 3964