SOMBA K'E/YELLOWKNIFE - Despite two Mounties' testimony that a bottle of vodka rolled out of a driver's truck and smashed on the ground after they pulled him over, a judge acquitted the accused of impaired driving Monday.

However, Judge Garth Malakoe convicted the 42-year-old man in territorial court for refusing a Breathalyzer. He was fined $1,380 and was ordered not to drive for 18 months as punishment for that offence.

On Nov. 1, 2009, just past midnight, RCMP officers turned onto Williams Avenue from Range Lake Road, and noticed the accused behind the wheel of a black Chevrolet pick-up truck, preparing to turn right at a stop sign. The officers, who recognized the man as having been intoxicated from a previous call that night, pulled him over. As he exited the truck, a one-quarter-full 750-ml bottle of vodka rolled out of the driver's seat and shattered on the asphalt. One officer also noticed a cup containing vodka placed in the truck's cupholder.

The officers noticed the man had slurred speech and was unsteady on his feet, said Malakoe. The accused was arrested on suspicion of impaired driving.

The man previously testified he was not told why he was arrested, not given the opportunity to speak to a lawyer, nor asked to submit to a breathalyzer test. He also alleged that the officer stashed the bottle in a "cubby hole" wrapped in a jacket and retrieved it later "intact," Malakoe told the court.

The RCMP officer responsible for administering the breathalyzer is on record as saying the man walked out of the room and told the officer, "you're going to have get a gun and shoot me in the back to get me in that room," said Malakoe. The man denied saying it.

Malakoe explained he couldn't determine beyond a reasonable doubt that the man was driving while impaired because the truck was at a stop sign when the RCMP spotted it. Neither officer actually observed the vehicle in motion while the man was allegedly intoxicated.

Crown prosecutor Andreane Cote asked for a $1,500 fine and a driving prohibition of 18 months. She argued that the accused has a criminal record including a previous conviction for impaired driving in 2002.

Defence lawyer Paul Falvo asked for a lesser fine because his client, a student on financial assistance, is not employed. He is also battling addiction to pain medication for a back problem, said Falvo.

Falvo also asked for a lesser driving prohibition because a longer one would interfere with the man's training course.

"The prognosis is quite positive. He's been down, but he's climbed back up," he said of his client.

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