ST. JOHN'S, N.L. — A woman charged with refusing the breathalyzer after making eight unsuccessful attempts to blow into the machine was acquitted in provincial court this week.
Natasha Murthy had pleaded not guilty to refusing the roadside test after a motor vehicle accident on the corner of Allandale Road and Philip Drive early in the morning of July 29, 2018.
An RNC officer who testified at trial told the court she had responded to the two-vehicle accident around 4:40 that morning, and was directed by firefighters at the scene to Murthy. Murthy advised she had been one of the drivers involved in the accident.
The officer said she had smelled alcohol and had asked Murthy if she had been drinking. Murthy said she had, and that her last drink had been almost two hours earlier. The police officer testified she had suspected Murthy of impaired driving, so she asked her to get into the police vehicle. The constable said she had explained to Murthy how the breathalyzer worked, and that Murthy would have to blow a steady breath.
Murthy's first two attempts at the breathalyzer resulted in an insufficient air flow sample, while the third resulted in a fail. Murthy advised the officer there could have been a mint caught in the straw of the device, and spat a Tic Tac on the ground. The officer changed the straw in the machine and administered the test again.
The officer told the court Murthy had grown increasingly frustrated with the situation, and would not blow continuously into the device. After two more unsuccessful attempts, the constable advised Murthy she would be charged with refusing the test if she did not provide a sample.
After Murthy was once again provided with instructions on how to blow into the device and made four more unsuccessful attempts, she was charged with refusing the breathalyzer.
The officer told the court Murthy repeatedly shouted, "I'm not listening" as she was read her rights and caution, and continued to shout and refused to acknowledge the constable in the vehicle. Murthy was later driven to a friend's house by a different police officer.
Murthy's lawyer, Jon Noonan, argued that the officer had not followed proper procedure in administering the test, since she should have waited 15 minutes after concluding the fail result could have been caused by the mint in Murthy's mouth.
Protocol requires police to wait this period of time for possible residual alcohol in the mouth and five minutes after smoking.
Noonan pointed out the officer had not asked Murthy if she had anything in her mouth prior to administering the test, and noted Murthy had appeared to be co-operating during the first three attempts.
Judge David Orr said the police officer had reasonable grounds to suspect Murthy had alcohol in her system, and was entitled to demand a breath sample from her.
"(The officer) stated that she had not noticed the mint in the accused's mouth but did not think it contained any alcohol," Orr said in bringing down his verdict. "She did not, as a result, wait the required 15 minutes before asking the accused for another sample. Consequently, I find the officer did not have an objective basis for not accepting the fail result on the roadside test device. Or in the alternative if I were to conclude that there was an objective basis for the officer to believe that the sample was contaminated, then the officer would have been obliged to wait 15 minutes as per her training. In either event, the testing was not properly executed."
In all circumstances, Murthy had not refused the breathalyzer, Orr concluded. She had provided a suitable sample, which had resulted in a fail. The officer should not have demanded additional breath samples, the judge said, finding Murthy not guilty of refusing the test.
