The police received a complaint about a suspected impaired driver. The driver was stopped by the police for further investigation. The officer noted an odour of alcohol and the driver admitted to consuming alcohol. The officer made a breath demand into the Approved Screening Device (ASD). At first the driver refused to provide a breath sample and requested to speak to a lawyer. The driver changed their mind about providing a breath sample and 18 minutes later requested to provide a breath sample. The officer denied this request and issued a 90 Day Immediate Roadside Prohibition for a Refusal.

The driver’s actions did not amount to a clear an unequivocal refusal and they should have been permitted to provide a breath sample after they changed their mind.

“After reviewing the evidence before me, I am not satisfied that you failed or refused to comply with the ASD demand.”

The 90-day Immediate Roadside Prohibition was revoked and the vehicle was released.