Acid Reflux Defence Succeeds – Reasonable Doubt for Impaired Charge

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An Ontario Court Justice has dismissed an impaired driving charge against an Orangeville-area man, finding his acid-reflux defence to be credible.

“Having come to this conclusion, I find that it has been established that there was a real possibility that some alcohol may have been in Mr. Coffey’s oral cavity when the tests were taken,” Justice Maund wrote in his April 10 decision.

“There was therefore a real potential for false readings from the instrument.”

Justice Maund further found that: “What is necessary is to establish a realistic scientific possibility. A reasonable doubt must be raised on the basis of credible evidence tending to show that the instrument was malfunctioning. I find that the evidence before me has established such a reasonable doubt as required by section 258(1)(c)(iv).”

Phillip Coffey had attended a wedding and consumed three glasses of wine over three hours, together with a heavy pasta meal, before he was stopped in August, 2010 in Mono, Ont., as part of a RIDE program. He was charged with having more than the legal limit of alcohol in his system.

Coffey’s doctor testified that Coffey has moderate to severe reflux, which causes stomach acid to be regurgitated into the mouth cavity.

A defence toxicologist testified about an alternative explanation for the breath test results. Ismail Moftah testified that since Coffey said he finished his last glass of wine shortly before leaving the wedding, there would have been unabsorbed alcohol in his stomach that could have been pushed into his mouth by the reflux, causing the fail reading on his breath tests.

Moftah concluded that, given Coffey’s height, weight and amount of alcohol he said he drank, Coffey’s blood alcohol level would have been no higher than 66 milligrams in 100 millilitres of blood.

Dr. Felix Klajner provided an agreed statement by way of an unsworn affidavit. The Crown submitted the report of a toxicologist from the Centre of Forensic Sciences, Mr. Jean-Paul Palmentier, who also testified.

Palmentier said he didn’t expect alcohol would still be present in Coffey’s stomach at the time of the two tests. He testified that it was “possible, but more than likely to be impossible” that the reflux would have affected both tests and produced nearly identical results.

In his decision, Justice Maund notes that the trial had been delayed by the anticipated decision of the Supreme Court of Canada in R. v. St. Onge-Lamourex [2012] S.C.J. No. 57.

Released in November, 2012, St. Onge-Lamourex interpreted an amendment to Section 258(1)(c) of the Criminal Code; an accused is now obliged to raise a reasonable doubt that the instrument was not functioning or operating properly. This substantially clarified and narrowed the issues in the Coffey case. Justice Maund said that as a result of St. Onge-Lamourex, his decision is “driven by factual assessments.”

“Evidence capable of raising such a reasonable doubt must be accepted in the sense that it meets normal evidentiary standards” as a result of St. Onge-Lamourex. “But such evidence need not rise to a standard of scientific probability or certainty.”

More information:

R. v. Coffey, 2013 ONCJ 178 (CanLII)

R. v. Mirzazadah, 2014 ONCJ 320 (CanLII) – Acid Reflux Defence Fails

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