Mr. Fenske failed an ASD test at the US border with Manitoba. He was driven to Carman for breath samples. He was convicted at trial but that was over turned on appeal. Mr. Fenske's position was that there was a delay caused by the decision to transport him to Carman for the breathalyzer tests and that the Crown had the onus to explain how that delay was reasonable, including explaining why inquiries were not made to conduct the tests at a closer police detachment. The officer's testimony was that he knew that the closest RCMP detachment with equipment to conduct breathalyzer testing was in Carman. The Manitoba Court of Appeal allowed the Crown's appeal and confirmed the conviction by the trial judge:
When determining whether the breath test was administered as soon as practicable, one starts by looking at the entire series of events. When one applies the “as soon as practicable” standard to the facts in this case, it is clear that the breath tests were carried out reasonably promptly and, therefore, as soon as practicable in the circumstances. R. v. Fenske, 2016 MBCA 117