02/02/2015 06:00 EST | Updated 04/04/2015 05:59 EDT

Winnipeg woman alleges she was wrongfully charged after taking breathalyzer

A Winnipeg woman who was arrested for allegedly not taking a breathalyzer insists she did take the test — 24 times — and was wrongfully charged.

Vicky Masyk had left her day shift serving at the Marion Street Hotel in December when she was pulled over by an officer as a part of the holiday check stop program.

"I wasn't nervous because I hadn't had a drink and I knew it was the time of year. It was the first time I have ever been pulled over and I thought it would take a few minutes," Masyk told CBC News.

"They knew [my car] was there all day, so they were probably assuming I was in [the bar] drinking all day."

Masyk said she told the officer she had not been drinking and had just left work, but he handed her a road-side breathalyzer device and asked her to blow into it. She complied, but the device did not register a reading.

She tried again — still nothing. 

"We kept trying and trying, and I couldn't understand why I couldn't [get a reading]" she said. "Then it went from bad to worse. Another officer came and they kept asking me to repeat this test. I never said no."

Masyk said the officers became increasingly intimidating and aggressive toward her, and accused her of being an alcoholic who was manipulating the test. 

"He was basically using a raging tone with me, screaming at me that a five-year-old could do this test."

Masyk asked if there was another test she could do to try to prove her innocence, but she was denied. 

"They kept basically telling me to shut up," she said. "I sort of shut down. I knew I was in trouble. I was sort of shell shocked by the end ... he was just convinced I was drunk."

She said that over a two-hour period, she blew into the device 24 times and no reading registered in all 24 cases.

"Finally they said I had one more chance to pass this and I didn't, and they charged me and then I was put in the alert mobile," she said.

Masyk was charged with refusing to provide a breath sample. The charge has changed her life.  

"Everything. It’s money — I'm paying for a new car I can't drive. I'm back to taking cabs because I work late at night. And the embarrassment," she said. "They published my name in the paper. Now there's the financial issue of getting a lawyer and getting my car out of the impound.

"I came home and I lied on my floor and cried. I didn't sleep for a couple of days. It was terrible."

Refusal charge valid even if you perform breathalyzer

A spokesperson for the Winnipeg Police Service declined to comment because the matter is before the courts.

But Saul Simmonds, a criminal defence lawyer in Winnipeg, says even though Masyk attempted the breathalyzer several times, she can still be charged with refusing to provide a sample.

"Twenty-four times is a fairly significant number," he said. "If an officer feels that a person is making a bona fide effort but is not getting a sample, then a police officer will give them other opportunities to blow.

"If the officer feels that they’re trying to circumvent the requirement to provide the sample, then they will charge them with refusal and that is as significant as an impaired [charge] or over 0.08."

He says that under the Criminal Code, it has the same financial penalty and driving suspensions. 

"There are going to be times when a person is making a bona fide effort to provide a sample and a person under those circumstances may go to court and convince a judge," said Simmonds.

"There are cases where a person may have a medical reason not to comply. They may have other issues that may interfere with their ability to provide a sample."

Simmonds says even though Masyk requested another type of test to prove she was not impaired, she does not have that right under the Criminal Code. 

"The Supreme Court has not given you the opportunity to say, 'Take me to a hospital, I’ll give you a blood sample,' so right then and there if you don't comply you've committed the offence," he said. 

He says overall, the roadside screening device is fairly accurate, but he cautions there are a series of elements that can go wrong in any testing procedure. He says for five out of every 100 breathalyzer cases that cross his desk, he suspects errors. 

"When a person feels that somehow the process is not worked in their favour … then that’s the reason we have courtrooms. And a person under those circumstance should not be pleading guilty."

Masyk maintains she had nothing to drink and her co-workers support her. She says the bar is outfitted with numerous cameras and she has been an employee for 21 years.

She will be fighting the charge in court in the fall and has lost faith in the Winnipeg Police Service.

"I can't believe I was treated this way and I don't think other people should be treated this way," said Masyk

"Everyone should be allowed a second option. If [police] are going to impact and change someone's life so much, [you should be] offered another way to produce a sample."

Simmonds agrees it may be something to look at again.