REASONABLE GROUNDS: IS BLOWING A FAIL ON A ROADSIDE TESTING DEVICE IN AND OF ITSELF REASONABLE AND PROBABLE GROUNDS?

The issue of failing an approved screening device arose when Mr. Buckley appealed his conviction to the Alberta Court of Appeal.  His application for leave to appeal was dismissed and the Court concluded that they did not have to answer the "abstract general question" about whether a roadside fail alone can in and of itself be reasonable and probable grounds to demand a breath sample as there was other evidence in this particular case:

There was evidence of the experience of the constable with this roadside situation, at least this type of alleged offence. The constable also relied on the admission of consuming three beers coming from the accused, and he relied on the fact that the accused was emitting an odour of alcohol. Indeed, the constable even said that having looked at and talked to the accused, he formed from his experience an estimate of what the likely reading on the Intoxilyzer at the police station would be. R. v. Buckley, 2014 ABCA 141

Please note that earlier cases (cited below) can be relied upon for the conclusion that, provided you have no reason to question the reliability of the failure, you can rely solely on a "fail" result as your grounds to make a breath demand. However, as was done by the officer in Mr. Buckley's case, you should include other grounds available for your opinion.

R. v. Yurechuk, 1982 ABCA 341 and R. v. Bernshaw, 1995 CanLII 150 (SCC)