A West Vancouver businessman has been told once again that police don't have to offer second chances when they ask a driver for a breath sample.
B.C. Supreme Court Justice Janice Dillon upheld a decision by North Vancouver provincial court Judge Bill Rodgers, who told Kenneth Charles Komenda last fall that he doesn't get a second chance after refusing a roadside breath demand.
West Vancouver police Const. Dominic Toa stopped Komenda, 58, as Komenda drove his BMW convertible across the Lions Gate Bridge in the early morning hours of Aug. 6, 2010.
The officer asked Komenda if he'd had anything to drink that night. Komenda said he hadn't. Komenda later explained his response saying he had only taken a few sips of beer during a social business meeting and didn't consider he'd been drinking.
But Toa smelled alcohol coming from the vehicle and asked Komenda to step out of the car. When the officer repeated his question, Komenda said he'd had some beer two hours before. Toa then asked Komenda to provide a breath sample.
Instead, Komenda asked what would happen if he refused to blow and was told he'd face the same penalties as a driver who failed the breathalyzer test. Komenda refused and was arrested and placed in the police car.
Komenda's lawyer in the original trial said once in the police car, his client changed his mind. He argued the police officer should have given him a second chance.
But the judge didn't agree, noting Komenda is a successful businessman and clearly understood what was being asked of him.
"If the courts say that a driver must receive a second chance to provide a breath sample, then why not a third chance? Or a fifth?" said Rodgers. "Such a requirement would render the breath demand legislation largely inoperative."
Rodgers convicted Komenda of refusing to provide a breath sample, fined him $1,000 and prohibited him from driving for a year.
In the appeal, Komenda's lawyer argued that Komenda hadn't refused the officer's breath demand because no "demand" for a breath sample was ever made: "It was just a request."
He also said Komenda should have had a second chance to blow.
But Dillon didn't agree. In dismissing his appeal, she added the "factual situation" of the case presented an "insurmountable obstacle" to Komenda's case.
