Faulty paperwork from a breathalyzer test helped a Cambridge man convicted of his fourth drinking and driving offence catch a break in court this week.
The Crown had sought four months in jail for Roy Saude, 51, after he pleaded guilty to driving with more than the legal amount of alcohol in his blood.
He ended up with just 30 days behind bars after his defence lawyer, Bernard Cummins, pointed to problems with the case.
One problem was the breathalyzer “certificate of analysis.” Saude’s middle name was omitted and an acronym was used for the Waterloo Regional Police Service.
“The case law is pretty clear that if you’re relying on the certificate, it has to be entirely accurate,” Cummins said in an interview on Thursday.
The certificate is an important document in court. It includes breath readings, the time that samples were taken, and a declaration that the samples were received directly into the instrument. The Crown submits it “and then they don’t have to prove everything that’s in it,” Cummins said.
If Saude’s case went to trial, the breathalyser technician would have been called to testify and could clear up any issues with the certificate. But the testimony could possibly create more problems for the Crown, Cummins said.
“He (the technician) might not articulate properly what’s set out in the certificate because it’s not like he can have the certificate in his hand when he’s testifying,” he said.
“The breath technician might testify, ‘Yeah, I got the first sample at 12:35.’ Well, he didn’t say ‘directly into the approved instrument,’ which, believe it or not, can result in an acquittal.”
Another problem, Cummins said, was a “completely unexplained” 26-minute delay between the time Saude arrived at the police station and the time of the first breath test.
“There doesn’t appear to be any reason why — it’s not like they had to turn on the machine or anything like that,” Cummins told court.
The first test showed Saude had 176 milligrams of alcohol in 100 millilitres of blood. The second recorded 180. Usually, the second test finds less alcohol as the body burns it off.
“But they are rising,” Cummins told court. “It seems that you’d have to presume that they’d be lower at the time of the actual driving.”
The legal limit is 80.
All told, the issues would have made it tricky for the Crown to prove its case, Cummins said.
“They’re not whimsical issues — they’re real triable issues that could result in an acquittal. I would suggest that my client should get significant credit for entering a plea in the circumstances of this case.”
Justice John Lynch agreed with the Crown that four months in jail would be appropriate but also agreed with Cummins that “there were some triable issues.”
Cummins asked for a no-jail sentence, but Lynch said the issues raised by the lawyer don’t change the fact that Saude was over the limit.
He was convicted of drinking and driving twice in 1990 and once in 1997. Each time he received a fine and a driving ban.
Last Nov. 29 at 1:30 a.m., Saude drove away from a bar on Samuelson Street in Cambridge. A police officer in a cruiser across the street followed him. Saude smelled of alcohol and had red, glossy eyes. He told police he had consumed two Fireball shots.
“This is not a one-time error in judgment here,” Lynch told Saude. “This is four times. You’ve had your cautions, you’ve had your warnings and, quite frankly, you’ve had fines imposed on three separate occasions.”
The judge said he needed to hand out a sentence that would denounce the crime and deter Saude and others. A fine would not do that, Lynch said.
“Quite candidly, I don’t want anyone thinking that you can come to court four times with a drinking and driving offence and get yourself a fine or a fine and probation and away you go,” he said. “This warrants a period in custody.”
In addition to 30 days in jail, Saude got a three-year driving ban and two years of probation.
“You will not see me again,” he told the judge.
“I hope that’s not just repeating what you said the last three times,” the judge replied.
Source: The Waterloo Region Record