No criminal charges for off-duty Winnipeg police officer who failed breathalyzer: IIU

A Winnipeg police officer will not face prosecution after failing a roadside alcohol screening while off duty and refusing to provide a second breath sample, Manitoba's police watchdog says.

An RCMP officer in the rural municipality of Whitemouth pulled over a silver truck on May 21 that had a damaged fender after the vehicle crossed the road's centre line, says a report from Manitoba's Independent Investigation Unit, which investigates all serious matters involving police.

Whitemouth RCMP had received two separate calls earlier that night about a damaged vehicle driving erratically near Rennie, Man., 125 kilometres west of Winnipeg, according to the IIU report.

The driver of the silver truck failed an alcohol screening, received a 90-day driving prohibition, a $700 fine, and had his vehicle impounded, the IIU report says. 

Driver claimed 'personal issues'

According to the IIU report, the screening test resulted in an insufficient breath reading, which the arresting officer suspected was due to the driver putting his tongue in front of the breathalyzer straw.  

The report says the driver continued to be "passive resistant" to the test, which prompted the RCMP officer to ask the man whether he was refusing to do the alcohol screening.

The driver told the RCMP officer that he was a member of the Winnipeg Police Service and was having some personal issues.

The IIU report says the RCMP officer told the man he would receive a three-day suspension if he failed the breathalyzer test. The driver then blew into the breathalyser again, resulting in a "fail" reading.

A second RCMP officer walked the man to the back of a police vehicle and he could not walk in a straight line, the report says.

When the first RCMP officer began to complete the paperwork for the failed breathalyzer test, the officer realized the three-day suspension she had communicated to the driver was only for a "warn" breath test, and that a "fail" breath test would mean the driver faced a 90-day driving prohibition, the IIU report says.

The driver accused the RCMP officer of deliberately misleading him and was reportedly angry with her. He declined to take a second breath test when it was offered.

The RCMP officer released the driver to the man's wife who had come to pick him up, the IIU report says.

On May 23, after prompting from Manitoba Public Insurance, the RCMP officer completed an updated impaired form, adding that the driver had been slurring his words and had unfocused eyes, and that immediately after the first breath test, a second breath test was offered to the driver, which the driver declined.

Crown opinion

As a part of the IIU's investigation and report, the civilian director of the unit asked the province to review the case and consider whether charges should be laid for the driver refusing to provide a second breath sample, and there being damage to the silver truck.

On Sept. 24, the Manitoba Prosecution Service informed the IIU that charges against the off-duty police officer were not warranted because the accused had been penalized through immediate roadside prohibitions under the Highway Traffic Act, and that the arresting RCMP officer "exercised discretion, consistent with discretion exercised in relation to other impaired drivers," the IIU report says.

Given the circumstances of the incident, including the Crown choosing to not recommend any criminal charges against the off-duty officer and deciding accountability through the immediate roadside prohibition was the appropriate choice, the IIU said it is not recommending charges against the Winnipeg police officer, and the investigation is now closed.

CBC asked the Winnipeg Police Service whether any disciplinary measures would be taken against the officer and received the following response:

"As this is an RCMP/IIU investigation we would not provide comment regarding their initial or follow-up investigation. The WPS does not typically provide comment on internal disciplinary matters," public information officer Const. Dani Mckinnon wrote in an email.

In July 2023 the province announced that impaired Manitoba drivers involved in collisions would begin to pay for damages they cause to other vehicles and property starting in August of that year, and will be unable to receive third-party liability coverage from MPI.