A police officer who stopped a suspected drunk driver in a roadblock on the Lions Gate Bridge was not required to offer the driver a second chance to blow after the man had already refused to give a breath sample, a provincial court judge has ruled.
Judge Bill Rodgers of the North Vancouver provincial court told Kenneth Komenda in a recent ruling there are no second chances when it comes to a police request to provide a roadside breath sample.
According to court documents, West Vancouver Police Constable Dominic Toa stopped Komenda as Komenda drove north in his BMW convertible across the Lions Gate Bridge at 1:45 a.m. on Aug. 6, 2010.
The police officer asked Komenda if hed had anything to drink that night. Komenda said he hadnt. 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 hed 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 hed face the same penalties as a driver who failed the breathalyzer test. Komenda refused to provide a breath sample, and was arrested and placed in the police car.
In court, Komendas lawyer said once in the police car, Komenda changed his mind. He argued the police officer should have given his client a second chance.
But the judge didnt agree, noting Komenda is a successful businessman involved in financing large projects 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? Or a twentieth? said Rodgers. Such a requirement would render the breath demand legislation largely inoperative.
Rodgers found Komenda guilty of refusing to comply with a breath sample, which carries a mandatory minimum sentence of a $1,000 fine and one-year driving ban. A sentencing hearing is set for next month in North Vancouver provincial court.
