The accused was found asleep in a vehicle and given a breath demand. The accused passed the breath test on a roadside screening device, or A.L.E.R.T. device. The officer concluded that his observations did not match the results of the test and determined that the A.L.E.R.T. device was not functioning properly. The trial judge determined that the reading of pass given by the A.L.E.R.T device constituted evidence to the contrary and, as such, acquitted that accused.

The A.L.E.R.T. device is not an approved government instrument for testing impaired driving. It is used only to determine the presence of alcohol in a suspect's blood but is not an evidence-producing device. The approved screening device, in this case a Borkenstein Breathalyser, is a evidence producing device. As a result, failure of the A.L.E.R.T. device does not constitute evidence to the contrary just as a failure on the A.L.E.R.T. device does not, in its self, constitute evidence-proving impairment. Also, it is important that the officer did not rely solely on the A.L.E.R.T. device to form his suspicion that the accused was impaired, as might be the case in a R.I.D.E program, but rather had reasonable grounds to suspect impairment using other observations.