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Judge acquits Cape Breton accused because police took too long to administer test

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SYDNEY, N.S. —

A Sydney provincial court judge has acquitted a Baddeck man of refusing a breathalyzer demand explaining police took too long to administer a field sobriety test.

Devyn Scott Garland, 24, was stopped by a Cape Breton Regional Police officer on Nov. 30, 2019 in North Sydney.

Const. James Penny testified he pulled Garland over because of concerns over the speed at which the vehicle was travelling.

In speaking with Garland, the officer detected an odour of alcohol and called for another officer to come to the scene to administer a standard field sobriety test.

In her decision, Judge Diane McGrath noted that Penny is not trained to give a field sobriety test nor was he able to administer a roadside screening test as such devices are not used by regional police.

As a result, Const. Cory MacKenize, who was working in central division on the night in question, was asked to travel to North Sydney to administer the sobriety test.

The examination involves an officer testing an individual’s coordination, balance and their ability to handle more than one task during the test.

MacKenzie arrived on the scene after some 20-25 minutes and after administering the test, advised Penny that Garland had performed poorly.

Garland was arrested and taken for a breathalyzer test.

McGrath said the evidence then shows that after six unsuccessful attempts to provide a breath sample, Garland was charged with impaired driving and refusal.

After all the evidence was presented during the trial, Crown prosecutor Lisa MacPhee moved to have the court enter a not guilty verdict on the impaired charge but argued for a conviction on the refusal offence.

Garland’s defence lawyer, Bill Burchell, argued the refusal charge could not stand because police failed to perform the test “immediately” as required by law.

In her review of the law, McGath determined that when a test is to be administered forthwith is means without delay.

“It is worth noting that Section 320.27 of the Criminal Code allows a peace officer to detain an individual for mandatory alcohol screening on mere suspicion that the individual has alcohol in their body. The caveat provided is that the screening must be done immediately, not as soon as practical, but immediately,” said McGrath.

“Once a peace officer has reasonable ground to believe that an offence has been committed, however, and a lawful breath or blood demand is made, the time for administering that testing is 'as soon as practicable' and the detained individual is afforded all the rights of a lawfully detained person, including the right to counsel.”

McGrath ruled that Garland was being detained on mere suspicion that he had been driving while impaired. He was detained at the roadside for more than 20 minutes.

“While the law provides for individuals in Mr. Garland’s position to be detained for the administration of roadside screening or testing, such screening or testing must be done immediately, it must be done without delay,” said McGrath.

The judge referred to a Supreme Court of Canada case that ruled a 30-minute wait for roadside testing did not constitute forthwith.

McGrath said the inability of Penny to perform a roadside test immediately after forming a suspicion that Garland might be impaired rendered his demand for a breathalyzer unlawful.

“Given that Const. Penny testified that the subsequent breath demand was predicated on the results of the field sobriety test, this court further finds that demand to be invalid and thus the subsequent refusal charge cannot stand.”

A spokesperson for the regional police service said staff is continuing to review the decision and will offer comment after that review is completed.

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