Randy Burbidge had more than twice the legal limit of alcohol in his system, according to results from a breathalyzer test, when he was pulled over in 2006 by OPP on an area highway.
Justice Terence O'Connor found him guilty in Brampton court on Jan. 12, 2007 of exceeding the blood alcohol limit, but stayed the impaired driving charge. The judge imposed a prison term of three-and-a-half years and a lifetime driving prohibition.
Burbidge tried to appeal his case on the grounds that officers waited too long to administer the breathalyzer and that it wasn't done "as soon as practicable," as required by the statute.
But the Ontario Court of Appeal determined the officers had reasons for the delay in administering the test.
"Police officers called by the Crown explained that by chance another driver was at the police station and was required to provide samples of her breath at basically the same time as the appellant was returned to the police station. By pure chance, she went first," the appeal judges said in their ruling. "This meant that (Burbidge) had to be moved back and forth to the cells between the taking of each sample and that he had to alternate his turn on the machine with the other driver. This obviously took some extra time."
As for the argument that Burbidge's sentence was too harsh, the court of appeal ruled he has a "lengthy criminal record including 13 prior convictions for drinking and driving related offences."
With respect to the lifetime driving prohibition, "we cannot say, again in light of the terrible record, that this imposition of a lifetime prohibition constitutes any error in principle," the appeal judges said.
lrosella@mississauga.net
