Emergence of fresh evidence suggesting police took too long to administer a breathalyzer has prompted a B.C. Supreme Court Justice to order a new trial for a Prince George man convicted of drunk driving.
Teuvo Tapio Jakonen was stopped at a roadblock in downtown Prince George on Dec. 29, 2007. When the officer noticed the odour of alcohol, he told Jakonen to step out of his vehicle and used the roadside screening device.
Jakonen registered a fail on the device and the officer went back to Jakonen's vehicle to retrieve the insurance papers but encountered his wife, who "became enraged and began yelling and screaming at the officer," Justice Ron Tindale wrote in a reasons for judgment reached April 12 and posted online this week.
She started to push the officer and another officer had to step in.
During the trial, the officer testified that about a half hour after Jakonen was stopped, he was in the Prince George RCMP detachment. Following a short conversation with his lawyer, Jakonen provided the first sample about a half hour later and the second about 15 minutes after that.
In all, it took an hour and 16 minutes from the time Jakonen was pulled over to the time he gave the second sample, according to the officer's testimony.
Jakonen and his wife also testified but the trial judge dismissed their evidence as unreliable. Jakonen had trouble piecing the events together and the wife was too upset to remember the events with any precise detail. The trial judge concluded that the times the officer gave were more accurate.
As a result, in July 2010, Jakonen was prohibited from driving for one year and fined $800 for driving with a blood-alcohol level over .08 under the Criminal Code.
However, Jakonen appealed the conviction after learning a witness told police that Jakonen may have been in the RCMP cruiser for as much as 45 minutes, not the half hour the officer had told the court.
The witness had given the statement in November 2008 during a subsequent police investigation of the wife's complaint of how the officer handled her but it was not made known to Jakonen until September 2011.
During a hearing in January into the appeal, the Crown argued the witness's testimony would not have affected the trial's outcome, asserting the variances in time were not significant and that it was not clear if the witness was speaking about Jakonen.
However, Tindale found the witness's statement speaks to whether the breathalyzer was administered "as soon as practicable."
"The evidence of an independent bystander stating that the appellant was in the police vehicle anywhere from 30 to 45 minutes is not only relevant, it could clearly affect the outcome of the trial," Tindale found.
In March 2011, drunk driving charges against Prince George resident Arnold Thomas Trenaman were stayed primarily because RCMP took more than two hours to get a breath sample, triggering the so-called "last drink defence" in which the accused can claim to have drank just before he got into his vehicle but was not yet drunk.
