Accused charged with refusal to provide a roadside screening sample. Accused originally said no to the breath demand, and was adamant that he wanted to provide a blood sample instead. Within a minute of being arrested, the accused stated that he would provide a breath sample. Police did not allow the accused to blow.

Held: Acquitted.

As per Cunningham, 1989 ABCA 163, the two conversations ought to have been treated as being part of a single transaction, and the accused did not unequivocally refuse to blow. Further, the police never gave the accused a “last chance”, nor was the accused ever presented with a screening device to blow into. By agreeing to blow within a few minutes of the demand, “I find the timing of his agreement to fall within the range of ‘immediately or as soon as practicable’.”

P. Brunnen – Defence Counsel