Stitches claim gets breath test refuser off hook

Man insisted deep breathing would aggravate injury

A judge has acquitted a Calgary man of refusing to provide a breath sample because of his fear that taking deep breaths to blow on the roadside device would cause abdominal pain due to recent surgery.

Provincial court Judge Terry Semenuk said in his decision released Tuesday that he believed the evidence given by Matthew One Spot, 33, in relation to the police traffic stop Nov. 4, 2011.

“Subjectively, I believe he had a genuine fear for his own safety should he comply with the breath demand,” said the judge. “He told police he just had surgery. In his own mind he was fearful of popping his stitches if he complied. Taking deep breaths and coughing as recommended after the surgery caused him considerable pain, so he didn’t do it.

“Objectively, it was reasonable for him to assume that he would experience the same pain and have the same fear if he provided a deep lung sample of his breath into the roadside device. There was confirmation for his belief when he went back to work and was required to take a breathalyzer test. It took him six tries, over the pain, to comply with that breath demand when he returned to work a week or so after the date in question.”

One Spot had told lawyer Rick Muenz that he had never before been asked to give a breath demand and didn’t know how much effort it would require. He said he explained to the officer that he just had surgery and had been advised by his doctor not to do anything strenuous because of his abdominal pain.

When asked why he didn’t call a cab after drinking at a pub, he replied, “I just wanted to get home.”

Crown prosecutor Grant Schorn had told court that a witness saw a vehicle travelling southbound on Deerfoot Trail at the Southland Drive overpass that could not hold a constant speed and was swerving between lanes.

The witness, suspecting a drunk driver, called police, who located One Spot driving into a parking stall at a liquor store on McIvor Blvd. S.E.

The officer noted the accused had bloodshot eyes, was having trouble focusing and detected an odour of alcohol.

The accused, who told the officer he had not consumed alcohol in the past 30 minutes, was asked to provide a breath sample. He said the man then changed his story, saying he hadn’t consumed alcohol for about 10 minutes.

After waiting another five minutes to meet the required 15 minutes time under law, One Spot repeatedly refused to blow on the device.

The Crown conceded that another charge of impaired driving could not be proven and it should be dismissed, which was done by the judge.