EVIDENCE TO THE CONTRARY - DOES "BURPING" AFFECT THE PROPER OPERATION AND FUNCTIONING OF THE INSTRUMENT?
Sunday, January 18, 2015 at 5:51PM Mr. So appealed his conviction at trial to the Alberta Court of Appeal on the issue above (see February 1, 2014 blog entry). His appeal was dismissed and his conviction upheld:
To rebut the statutory presumptions an accused must establish to the reasonable doubt standard: (a) a deficiency in the functioning or operation of the instrument; and (b) that the deficiency directly related to the reliability of the breath test results. The appellant failed to raise a reasonable doubt on both (a) and (b) above, that there was “evidence tending to show ... that the approved instrument was ... operated improperly”. All that could be said from this record is that the appellant burped and the technician, not knowing about it, did not turn his mind to the possibility of mouth alcohol. That alone did not raise a reasonable doubt that there had been non-compliance with the Manual, let alone point to any evidence directly relating any such non-compliance to the reliability of the test results. R. v. So, 2014 ABCA 451