APPROVED SCREENING DEVICE - A SECOND ASD TEST DUE TO MOUTH ALCOHOL UPHELD

Mr. Norrie was stopped and an ASD demand was made of him.  Before blowing (and failing) he said his last drink was two hours earlier. Then when the officer was later looking in Mr. Norrie’s vehicle, he spotted two full cans of beer in the centre counsel and became concerned that the presence of mouth alcohol might have distorted the screening device result. So the officer waited 15 minutes and then made another ASD demand and Mr. Norrie blew and failed (again). There was an acquittal at trial but the Crown’s appeal was allowed and a new trial ordered.  In a short decision, R. v. Norrie, 2017 ONCA 795, the Ontario Court of Appeal has refused Mr. Norrie’s application for leave to appeal. The summary conviction appeal judgment, R. v. Norrie, 2016 ONSC 4644, states:

Mr. Norrie was not arbitrarily detained.  To the contrary, his detention was justified.  He was detained for the purpose of ensuring that he was given a fair test.  The further detention of Mr. Norrie to facilitate a second test was within the officer’s power and contemplated by section 254(2) of the Criminal Code. It is clear that [the officer] had an honest belief on reasonable grounds that the delay was necessary to deal with the mouth/alcohol question.