Asthmatic man acquitted for not giving breath sample

KITCHENER — A Cambridge man who works with chemicals that can aggravate his asthma was found not guilty on Friday of failing to give a breath sample and impaired driving.

Dieter King, 33, was ordered to give a breath sample last Sept. 2 after his “show car,” a 1983 Pontiac Grand Prix, broke an axle, lost a tire and mounted a curb on Main Street in Cambridge.

A Waterloo Regional Police officer said King’s eyes were glassy and he smelled of alcohol.

At the police station, King blew into a breath machine several times but failed to give a suitable sample.

“He works in metal finishing and has asthma,” Justice Scott Latimer said.

“His work location contains, among other things, hydrochloric acid, zinc and other metal cleaners and can create a ‘fog’ in the air and gets in the lungs.

“It can affect his breathing at times.”

King said fumes at work affected his ability to breathe at the police station.

“He testified he tried his best to provide a sample,” the judge said. “He was trying his hardest but he simply was not able to. His lungs were sore that day from work but he was blowing to the best of his ability.”

Latimer was not entirely convinced King tried to give a proper sample.

But others factors raised doubt about his guilt, including King’s suggestion he blow into an OPP breath device — “which he apparently had some experience with” — or give a blood sample, the judge said.

“Mr. King’s offer to provide a blood sample is inconsistent with someone who’s intending to frustrate an investigator’s attempts to ascertain his blood-alcohol concentration,” Latimer said.

King testified he finished work at 11 p.m. and had one beer over several hours at the Brantford casino. He left the casino at 4:30 a.m.

A video of King’s interactions with a breath technician at the police station was played at his trial.

“It was a matter of whether he was feigning his efforts or not,” defence lawyer Ryan Heighton said in an interview.

“The judge found that he couldn’t find beyond a reasonable doubt that he was misleading them or not trying to blow.

“All of the circumstances — offering to give a blood sample, his pre-existing medical condition — led (the judge) to find that my guy didn’t have the intention to obstruct the police.”

King was acquitted of failing to give a breath sample and impaired driving but guilty of possession of less than a gram of marijuana. He was fined $50.