A Whitehorse man has been cleared of a charge of drunk driving.

In territorial court earlier this week, Michael Bramadat-Willcock was acquitted of one count of operating a motor vehicle with a blood alcohol level exceeding the legal limit.

Judge Peter Chisholm made the decision, finding that the RCMP had not taken breath samples “as soon as practicable.”

Under the Canadian Criminal Code, analysis of breath samples of the accused may be admitted in evidence if “each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least 15 minutes between the times the samples were taken.”

In other words, if certain preconditions are met, the Crown does not have to establish the exact blood alcohol at the time of driving, also known as the presumption of identity.

Otherwise, expert evidence is required to extrapolate breath readings back to the time of driving.

Bramadat-Willcock was charged after he was pulled over by an RCMP officer in downtown Whitehorse early on the morning of Oct. 1, 2016, as his headlights were not illuminated.

The officer testified that she demanded a breath sample as she smelled alcohol on his breath and he admitted to having consumed alcohol.

But the officer did not have an approved screening device with her at the time of the traffic stop.

She requested that one be brought to her and another officer arrived at the scene with a device within three minutes.

The testing process was then delayed a further eight minutes due to concerns that Bramadat-Willcock had consumed alcohol in the prior 15 minutes, which could have affected the results.

When he did provide a sample, the result was a fail, and he was arrested.

The officer called for a tow truck for Bramadat-Willcock’s vehicle at 3:16 a.m., but approximately half an hour later, it had yet to arrive.

The officer decided to leave the locked vehicle in order to take Bramadat-Willcock to the RCMP detachment a short distance away.

After he spoke to a lawyer at the detachment, the officer began an observation period.

The first observation period started at 4:05 a.m., and Bramadat-Wilcock provided his first breath sample at 4:28 a.m.

The second observation period began at 4:30 a.m. and a second sample was taken at 4:49 a.m.

The officer testified she was observing for signs of burping or regurgitation, and believed the observation period was usually 15 or 20 minutes.

Defence counsel Joni Ellerton argued that the combined time waiting for the tow truck and the observation period amounted to the breath samples not being taken “as soon as practicable.”

She also argued that the observation period was arbitrary and unreasonable.

But Crown prosecutor Leo Lane argued that the defence’s argument should have been made as a Canadian Charter of Rights and Freedoms application in an earlier pre-trial conference, and that the samples were taken as soon as practicable.

Judge Chisholm noted that under case law, “as soon as practicable” means that “the tests were taken within a reasonably prompt time under the circumstances.

“In my view, the officer in this case has not provided a reasonable explanation as to why she stayed with the locked motor vehicle that was safely parked at the side of a street in the downtown area for a lengthy period of time, before ultimately determining to leave it unattended,” he said.

“I find this 30-minute delay in bringing Mr. Bramadat-Willcock to the detachment resulted in the breath tests not being taken as soon as practicable.”

Judge Chisholm found Bramadat-Willcock not guilty, as the Crown could not rely on the presumption of identity.

As well, there was no evidence relating the breath samples to his blood alcohol level at the time of driving, Judge Chisholm ruled.

But the judge did not find that the 20- to 25-minute observation period resulted in an infringement.

He noted that the officer had an understanding of the observation period, as well as the normal time range for this process.