Winnipeg Free Press - PRINT EDITION

Motorist wins drunk-driving appeal, still faces trial

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It may have seemed like an open-and-shut drunk-driving case: A Winnipeg man is pulled over outside a bar, submits to a breathalyzer and fails miserably.

But thanks to a police paperwork snafu, the accused's seemingly slam-dunk conviction has been overturned on appeal.

Stanley Fryza was arrested two years ago during a Christmas Checkstop as he left the Marion Hotel. He produced blood-alcohol readings of .11 and .13.

Fryza was convicted at trial of driving over the legal limit of .08 based on those readings. His lawyer immediately appealed after discovering a technical glitch in the evidence: A certificate of analysis on Fryza's breathalyzer results had been photocopied by the arresting officer.

In the process, the copy given to the defence was missing part of the text that was inadvertently cut off. This included a portion of the "lot number of the alcohol standard" used in the testing process.

Although the evidence was stamped "Certified True Copy," the duplicate wasn't an exact match with the original.

Police told court it was an "innocent shifting of the paper" that caused the error and they didn't realized it until it was too late. The Crown said it didn't change the strong evidence against Fryza, as the original document clearly shows the accurate test results.

"The Crown argued... the copy provided to the accused was, in fact, a true copy, albeit a copy with a defect. It argued that the defect was not material information but, rather, surplusage," court documents obtained by the Free Press reveal.

But a Court of Queen's Bench judge disagreed, saying "an essential part of the certificate of analysis" had been altered in the disclosure process. The judge ruled the only remedy was to throw out the conviction and try the case again.

The Manitoba Court of Appeal, in a decision released this week, upheld that ruling. However, the Appeal Court refused Fryza's request to go a step further and enter an outright acquittal, which would have prevented the Crown from bringing his case back to court.

As the high court noted, Fryza likely has only delayed the inevitable.

"It is clear that in this case, evidence can be called at a new trial to remedy this defect, either by calling the breathalyzer technician who performed the breathalyzer test or the arresting officer, who was himself a qualified breathalyzer technician, to testify as to the test results, or by serving the accused with a new copy of the certificate of analysis," Justice Holly Beard wrote in the 18-page decision.

No new trial dates have been set.

www.mikeoncrime.com

Republished from the Winnipeg Free Press print edition October 26, 2013 A12

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