SECTION 254(3) - ROADSIDE OFFICER "COMPLETELY FORGOT" DEMAND - QUALIFIED TECHNICIAN MAKES DEMAND AT STATION - CONVICTION UPHELD

Mr. Guenter was convicted of three counts of impaired causing bodily harm.  He appealled and one of his grounds of appeal was that the breath test samples should have been excluded because he was not read the breath demand "as soon as practicable". The arresting officer testified she “completely forgot” to read a demand to the appellant at the scene of the collision. She explained the scene was horrific, she was interrupted by paramedics when reading the appellant his rights and caution, and that interruption may have broken her train of thought. However she informed the breath technician of her grounds for arresting the appellant, specifically: the appellant had been involved in a traffic accident; she observed the odour of alcohol on his breath; she observed he was unsteady on his feet, his speech was slurred, and he was unable to keep his head up. The breath tech read the appellant his rights to counsel, caution to a charged person, secondary caution to a charged person, and the breathalyzer test demand. The trial judge held that demand was valid and the Ontario Court of Appeal agreed:

There is no dispute that the breath tech made his demand immediately following his formation of reasonable grounds to do so. Accordingly, his demand was made “as soon as practicable” in accordance with s. 254(3).  It follows that the trial judge did not err in concluding that “the breath samples were lawfully taken and the evidence flowing from their analysis is admissible”. R. v. Guenter, 2016 ONCA 572