CASE LAW - R v Almardy
Khalid Almardy was stopped by police in the early morning hours of October 21, 2017 in Victoria as he was a novice driver who was not displaying a new driver sign on his vehicle and was carrying too many passengers. Cst. Christians of the Capital Region Integrated Road Safety Unit detected the odour of liquor on Mr. Almardy's breath. Drivers in the Graduated Licensing Program must have zero blood alcohol when driving.
A roadside screening device was used and Mr. Almardy's blood alcohol concentration (BAC) was determined to be 59 mg%. Based on the screen and the odour of liquor, a ticket for driving contrary to licence restrictions (zero BAC) was issued.
The Judicial Justice excluded the screening evidence as it had been taken without a Charter warning. He convicted Mr. Almardy on the basis of the odour of liquor on his breath alone.
That conviction was appealed.
Justice J. A. Power set aside the conviction and entered an acquittal. She found that the Judicial Justice erred by relying solely on the odour of liquor on Mr. Amardy's breath as evidence of alcohol in his body without further evidence to discount the possibility that the odour was stale and the alcohol had been eliminated from the body.