Judge doesn’t buy driver’s story

American claimed he didn’t know he had to give roadside breath sample

KITCHENER — A U.S. citizen claimed he didn’t know he was legally obligated in Canada to give police a roadside breath sample. A judge didn’t believe him. Daniel Virgilio, 31, a civil engineer from Chicago who has worked locally since 2014, was found guilty of refusing to provide a breath sample.

On Nov. 6, 2016, Const. Matt Halliday of Waterloo Regional Police was on the lookout for impaired drivers. He pulled over Virgilio’s truck at 1:47 a.m. after it left The Pub on King in uptown Waterloo.

Halliday smelled alcohol on Virgilio’s breath. Virgilio said he had a drink three hours earlier. Halliday demanded he blow into an alcohol screening device.

According to Halliday, Virgilio’s response was, “I’m not providing a sample, I’m refusing.”

The officer said he told Virgilio if he didn’t give a breath sample, he would lose his driver’s licence, get a criminal record and could be deported.

Halliday said Virgilio responded, “No problem, I’m refusing, arrest me.” The officer obliged. Virgilio gave a different version of events. He testified he told the officer he would “prefer” not to give a sample.

“His understanding was that he had the right to decline a sample unless he was under arrest,” Justice Scott Latimer said last month in a recap of Virgilio’s testimony. “He had been told to use the word ‘prefer’ if he ever found himself in such a position, and denied uttering the word ‘refuse.’”

Virgilio testified he would have given a roadside sample had he known the law in Canada. He claimed he thought he could provide a sample at the police station.

Latimer did not believe Virgilio. He noted Virgilio testified he did not know it was against the law to decline to give a sample, but in cross-examination acknowledged Halliday told him he would be charged for refusing.

“I found his answers in cross-examination evasive at times as he, in my view, attempted to side-step the clear implication of that knowledge — he knew a criminal charge would follow his conscious decision not to provide a sample to Halliday,” Lati-

mer said.

Virgilio’s stated belief that he could give a sample at the police station is “largely immaterial,” the judge said. “The law did not require him to provide a sample at some point during the investigation — it required him to provide one immediately.”

Latimer didn’t believe Virgilio’s testimony that Halliday demanded a breath test before Virgilio left his truck.

There was a passenger in the truck and “even a new officer knows to isolate the odour of alcohol before taking a subsequent investigative step,” Latimer said. “I found Halliday to far exceed a new officer, in experience and competence in this particular investigative context.

“I do not accept that Halliday would have sought to administer a test before he determined if the odour of alcohol was, in fact, coming from the defendant’s breath.”

Virgilio was represented by defence lawyer Bruce Ritter. The Crown prosecutor was Aaron McMaster.