The appellant was stopped by a R.I.D.E. Program officer at 1:42 a.m. on August 9, 1998. The officer noted watery eyes, and the smell of alcohol. He administered a roadside screening test, the appellant failed, he was arrested and within the required time two Intoxilyzer tests were administered at the police station. The readings were 100 milligrams of alcohol in 100 millilitres of blood on each test, separated by 20 minutes. The certificates were entered into evidence. The appellant testified that he had consumed six beers between 9 p.m. and 1:30 a.m., as supported by his Mastercard bill for that evening. He doubted that anyone else had bought him a beer and thought he was drinking in even intervals but couldn't be sure.

The results of the Intoxilyzer test have repeatedly been recognized by the courts to be very reliable. In this case readings of 100 were twice registered. Evidence from a Defence witness demonstrates that a significant percentage of the population, although not a majority, eliminates alcohol more slowly and would register readings of more than .08. Obviously the accused could well be in this group. In other words, on the basis of the Defence expert evidence alone the accused could well be guilty. Furthermore, although seemingly sincere, the accused could not be definite as to whether anyone he had been drinking with socially had bought him an additional beer, or that his drinking occurred at regular intervals. In short, his testimony lacked certainty. Obviously increased consumption would have pushed his blood alcohol content higher.