R. v. FELTHAM, 2024 NLPC 0824A00019, MAY 29, 2024.

FACTS:  The accused pleaded guilty to the offence of refusing to comply with a breathalyzer demand, contrary to section 320.15(1) of the Criminal Code.  The circumstances were described in the following manner (at paragraphs 1 and 2):    

On January 21, 2024, the police received a complaint that Darryl Feltham was driving impaired. Police attended Mr. Feltham’s residence and located him. He appeared to be under the influence of alcohol. Police advised him not to drive and departed. A short time later police were leaving the Marystown RCMP detachment and saw an individual they believed to be Feltham driving Feltham’s vehicle.

Police stopped the vehicle and identified the driver as Darryl Feltham. As police were approaching the vehicle, Mr. Feltham put an entire chocolate bar in his mouth. In speaking with Mr. Feltham at the roadside, the police officer detected an odor of alcohol and made the approved screening device (ASD) demand, pursuant to ss. 320.27(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46. The officer was required to wait before administering the ASD, as Mr. Feltham had just eaten the chocolate bar. Mr. Feltham was instructed not to put anything else in his mouth but tried twice to light a cigarette during this time. When the ASD was administered, Mr. Feltham blew a “fail.” Police read the breath demand and Mr. Feltham refused to provide a sample.

The accused had a prior related conviction, but the Crown did not file a notice seeking a greater penalty.

HELD:  Judge Rehner imposed a fine of $2300, a victim fine surcharge of 30%, and a twelve-month prohibition on operating a conveyance. She held that “the discretion to reduce a driving prohibition below the mandatory minimum that the court found in Basque does not extend to giving credit for pre-sentence administrative suspensions pursuant to the Highway Traffic Act” (at paragraph 23).