RSBC v. GB – IRP APPEAL SUCCESSFUL –  “MOUTH ALCOHOL” FROM RECENT DRINK AND AFFECTING RELIABILITY OF ASD RESULTS – DRIVER PROVIDED TWO ASD SAMPLES BOTH WITH “FAIL” READING – BOTH ASD TESTS FOUND TO BE UNRELIABLE AND DRIVER WITHIN LEGAL LIMIT OWING TO FAULTY BREATH TEST READINGS

Facts:  On January 21, 2018 the Driver (GB) had met up with his friends at a local tavern in Maple Ridge while his wife was at home with friends having a “baby shower” for the expected baby.  GB’s friends drank a lot of alcohol but as GB’s wife was expecting a baby he nursed ONE BEER the entire night.  GB departed the tavern at 1:48 am but before he did he downed the last of the beer that he had been nursing.  He left the tavern with his two friends and they all entered his small pick up t drive his friends home.  They departed the tavern’s parking lot at 1:49 am (a minute after his last consumption of beer).  The police were lurking around and noticed that GB failed to come to a “complete stop” at a stop sign and merging into traffic.  The police noticed GB’s vehicle then drift over the lane divider line and “almost cross the dotted line” and then take a wide turn at a light.  The police stopped GB’s vehicle blocks away from the tavern.   The police officer asked GB who admitted that “he had a drink about an hour ago” and the officer noted that GB produced several cards to him when the officer asked for his driver’s license only. The officer read an ASD demand and was later provided with two breath samples from GB into two separate ASD instruments, both tests read FAIL indicating BAC over 100 milligrams per cent (ie. well over the legal limit).  The officer issued an IRP Notice of Driving Prohibition.   GB hired Jamie Butler to fight his IRP 90 day driving prohibition.  At the oral appeal an Affidavit was introduced indicating GB’s drinking pattern and his explanation for the alleged driving infractions.  On GB’s Affidavit submitted on the IRP appeal GB indicated that both breath samples were taken within 10 to 11 minutes of his last consumption of his “nursed” beer. His wife said that he was stone cold sober when he later arrived at home and that his breath did not even smell of alcohol. Forensic Expert Nizar Shajani provided an expert report indicating that GB’s blood alcohol concentration should have been under the legal limit if he only consumed the one beer over at the tavern and further indicated that ASD instruments can be adversely affected by “mouth alcohol” introduced into a subject’s mouth by way of a recent sip of beer.   Decision:  “Was your BAC (blood alcohol concentration) less than 80 mgs% though the ASD registered a “FAIL”? You have satisfied me that your BAC was less than 80 mg% even though the ASD registered a “FAIL”.   Result:  revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (February 2018)

Here as a post-script it is noted that a simple SIP on an alcoholic beverage (here, beer) can cause an ASD to produce a falsely high ASD test result (here a FAIL result) if the SIP was within 15 minutes before an ASD test.

RSBC v. VC – ADP APPEAL SUCCESSFUL –  INSUFFICIENT GROUNDS FOR POLICE TO ISSUE A DEMAND FOR A DRIVER’S BREATH SAMPLE FOUND TO BE A LAWFUL DEFENCE TO A DRIVER’S FAILURE TO PROVIDE A BREATH SAMPLE

Facts:  On July 14, 2017 the Driver (VC) had picked up his friend (JB) and afterwards drove from Surrey to Vancouver to meet two young women on a double date.  All four of them met up at a restaurant/bar in Vancouver where VC’s friend JB and the two women drank alcohol while VC only consumed Red Bull and water.  All four left the bar at closing and walked to a pizza joint and later to one of the young woman’s residences where VC again only drank non-alcoholic beverages while the other three drank alcoholic beverages as the evening progressed.  At 4:22 am VC and JB were driving home to Surrey from a “good night out”.  VC drove through East Hastings and Main which is an area of Vancouver riddled with police at that hour.  Officer Chow indicated (in his written report later filed with RSBC) that the VC’s vehicle pulled up beside him at a red light and then turned right without signalling.    Officer Chow conducted a stop of VC’s vehicle (likely, in this author’s opinion, because of the time of night and not the alleged infraction).  Officer Chow indicated that he could smell alcohol coming from inside the vehicle.  VC advised the officer, when questioned, that the last time he had consumed alcohol was several days prior.   VC argued with the officer as to the reason for the alleged stop (ie. VC denied not signalling and confronted the officer about making this up). The officer demanded a breath sample from VC but VC stood firm in the fact that the officer was lying about the reason for the stop and demanded to speak to a lawyer.  VC advised the officer he had no legal right to demand a sample from him under these circumstances.  The officer issued VC an ADP 90 day driving prohibition and went further issuing criminal charges against VC for his “failure to provide a breath sample”. VC hired Jamie Butler to fight both the ADP 90 day driving prohibition and the criminal charges that followed it.  Affidavit evidence was produced from VC and his friend that indicated that VC had indeed not consumed any alcohol on July 14 or 15^th.  The reason for the initial stop was put in issue as it was utterly impossible that the officer could have seen the rear signal light of VC’s car at the time he allegedly saw it at the stop light (as VC’s car was beside and not in front of Officer Chow’s car).  Case law was presented at the oral hearing that a driver can lawfully refuse a breath demand if he or she has not consumed any alcohol prior to the officer issued demand.  The BC courts have indicated that the police officer must have lawful grounds for demanding a breath sample or else the demand itself is unlawful (see: Ema v SMV, 2013 BCSC 47 and Marton v. SMV, 2015 BCSC 422).  Decision:  “I am not satisfied that a proper demand was issued to you”.  Result:  revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (February 2018)

Here as a post-script it is noted that lawful grounds for a breath sample CAN be based upon as combination of factors that might not include a driver’s prior admission of consumption of alcohol or the smell of alcohol on a driver’s breath BUT the absence of those indicators (in MOST cases) will make it VERY LEGALLY DIFFICULT for a police officer to legally force a driver  to provide a breath sample.  As the law stands currently, an officer must have a “reasonable suspicion” that a driver has alcohol in his body at the time of driving in order to effect a lawful breath demand by a driver into an ASD.  The refusal of an unlawful demand may be legally excusable in these circumstances.  In this case after the ASD appeal overturned the 90 day prohibition the Crown Counsel in Vancouver was later convinced that all criminal charges recommended by the officer should be dismissed – resulting in a double victory for VC!

RSBC v. CLIENT X – IRP APPEAL SUCCESSFUL –  OFFICER ISSUING IRP NOTICE OF DRIVING PROHIBITION BUT LATER FAILING TO SUBMIT REQUIRED MATERIALS TO ROADSAFETYBC – OFFICER’S FAILURE TO SUBMIT MATERIALS WITHIN 7 DAYS LEADS TO SUCCESSFUL APPEAL

Facts:  On February 21, 2018 the Driver (Client X) had spent the early evening after work at a restaurant with a friend.  She had over-consumed wine with dinner and made a poor decision to drive the short distance home.  While driving home within 3 blocks of the restaurant she rear-ended a vehicle.  She pulled over and exchanged information with the other driver and then continued on.  About 6 blocks later she crossed over the dividing line and drove into the oncoming traffic.  This latter event was witnessed by the police who stopped her and later issued her a violation ticket.  In the course of this violation ticket investigation the officer detected alcohol and thus read Client X a Notice of Driving Prohibition and had Client X’s car impounded.  Client X, was a businesswoman who needed her ability to drive to make a living.  Six days after the events described above she hired Jamie Butler to fight the IRP Driving Prohibition. As the BC Motor Vehicle Act (the “Act”) suggests that a person served with an IRP driving prohibition must file an appeal with RSBC within 7 days Jamie Butler had the client file the appeal within the 7 days required.  According to a combination of the relevant statutory sections of the Act (section 215.48(1), 215.48(7) and 215.47(d)) the officer who serves the Notice of Driving Prohibition upon a driver must “promptly” (and WITHIN 7 DAYS) forward to RoadSafetyBC  “…a report … sworn or solemnly affirmed by the peace officer” and if same is not done by the officer AND the driver files for an appeal of the IRP 90 day driving prohibition within the allotted time (ie. within 7 days of their having received service of same) then the PROHIBITION MUST BE REVOKED by the operation of law.  Jamie Butler ensured that the appeal was indeed launched within the 7 days of service of the Notice of Driving Prohibition and made the appropriate submissions to have this driving prohibition successfully appealed by operation of law.

Result:  revocation of any intended driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (February 2018)

• Postscript: It is utterly important that ALL drivers apply to appeal their IRP driving prohibitions within 7 days of having been served with an IRP 90 days Notice of Driving Prohibition by an officer as this commenced the appeal. Without doing so they will have little to NO chance of having an IRP driving prohibition revoked as the statute indicates this MUST BE DONE.   It is equally important for the officer who served the IRP driving prohibition to file the correct reports with RoadsafetyBC within 7 days of their service of any IRP driving prohibition.  The result of the police officer’s not doing so can result in an AUTOMATIC WIN for the applicant.  In this case, though the client should arguably not have been on the road owing to her impairment, by initiating her appeal she set in motion the ability for a sure victory.

RSBC v. RW – IRP APPEAL SUCCESSFUL –  DRIVER LEFT PUB IN VEHICLE AND FOLLOWED BY POLICE –  DRIVER BURPED INSIDE HIS VEHICLE WHEN OFFICER PRESENT — “MOUTH ALCOHOL” FROM RECENT DRINK AND LATER BURP AFFECTING RELIABILITY OF ASD RESULTS – DRIVER PROVIDED TWO ASD SAMPLES BOTH WITH “FAIL” READING – BOTH ASD TESTS FOUND TO BE UNRELIABLE EVEN THOUGH SECOND ASD SAMPLE BEYOND 15 MINUTES FROM LAST CONSUMPTION  –  BURPING AFFECTS ASD TESTING!

Facts:  On December 8, 2017 the Driver (RW) had spent a long day working at a mine in Northern BC.  On his way home he decided to stop into a well-known Pub and restaurant in Chetwynd for dinner.  Once inside he realized the kitchen was closed.  The bartender served him two beers which he did consume in pretty rapid succession.  He left the Pub within 40 minutes of his arrival, at 11:35 pm.  He got into his truck and unknown to him he was followed by a police officer who was stationed outside the Pub.  The officer wrote a report indicating that RW made several driving infractions (failing to completely stop at a railway track and later at another stop sign and illuminating an LED bar for no reason).  RW was stopped at 11:38 pm.  When the officer approached his vehicle RW leaned over to the glove box to get his paperwork and burped as he did so. After RW “agreed” with the officer that he (RW) had been consuming liquor AND that the last drink was 20 minutes prior, the officer formed the grounds that RW was drunk and read an ASD demand to RW at 11:39 pm. and was provided with two breath samples from RS into two separate ASD instruments, both tests read FAIL indicating BAC over 100 milligrams per cent (ie. well over the legal limit).  The two tests were completed at 11:46pm and 11:53 pm respectfully.  The first test was completed within 15 minutes of RW’s last sip of beer but the second was completed about 18 minutes after that last sip (but within 15 minutes of his reported burping within the vehicle).  The officer issued an IRP Notice of Driving Prohibition.   RW hired Jamie Butler to fight her IRP 90 day driving prohibition.  At the oral appeal an Affidavit was introduced indicating RW’s drinking pattern which was confirmed by a letter from the bartender at the Pub.   RW described how he had BURPED after the officer had stopped his vehicle while searching for papers in his glovebox  (ie. at 11:38 pm and within 15 minutes of the second ASD test).   Forensic Expert Nizar Shajani provided an expert report indicating that, given the weight and times of consumption, RW’s blood alcohol concentration should have been under the legal limit if he only consumed the alcohol he indicated in his Affidavit and further indicated that ASD instruments can be adversely affected by “mouth alcohol” introduced into a subject’s mouth by way of a recent consumption or by way of “BURPING” if there was alcohol in a subject’s stomach.   Decision:  “Did the ASD register a “FAIL” but your BAC was less than 80 mg%?” You have satisfied me that your BAC was less than 80 mg% even though the ASD registered “FAIL” results.   Result:  revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (January 2018)

• Postscript: RW had admittedly been consuming alcohol immediately prior to driving but importantly for him he ALSO had admitted in his Affidavit to what occurred after being stopped by the police (having burped).  The first ASD sample was taken within 15 minutes of his last sip of beer but the second was only taken within 15 minutes of his last burp after recent consumption. The adjudicator implicitly and explicitly found that the burp had affected the second ASD reading resulting in falsely elevated BAC readings and allowed this appeal.

RSBC v. IF – IRP APPEAL SUCCESSFUL –  REFUSAL TO PROVIDE SAMPLE – CHEST INJURY FROM CAR ACCIDENT CASUING BREATHING ISSUES THAT PREVENTED PROPER BREATH SAMPLING FROM OCURRING-– REASONABLE EXCUSE

Facts:  On the morning of December 1, 2017 the Driver, IF, was involved in packing up her residence for a move.  Her father helped her to with packing.  While packing IF had a coffee and Bailey’s Irish Cream (which contains alcohol).  IF then drove to work at about 3:00pm.  It was raining and a IF was on a one lane highway near Nanaimo.  IF failed to see a vehicle ahead was attempting to turn into a gas station.  IF applied the brakes and collided with this vehicle causing IF’s vehicle severe front end damage.  In the course of the mva IF was thrown forward and struck her face and chest on the steering wheel with such force that the steering wheel was bent by the blow.  IF suffered facial lacerations and bruising to her chest.  IF was taken from the vehicle and placed in an ambulance.  While in the ambulance IF was given some kind of medication (likely morphine) and this made her “loopy” and disorientated.  A police officer (whose name I will not mention here for a variety of reasons) then came into the ambulance and noted the smell of alcohol on IF’s breath.  He thereafter demanded breath samples from IF and produced an ASD device for her to provide a sample.  IF was disorientated and did not recall much of what was happening after the mva.  IF did not even later recall the officer’s demand.  The officer indicated that IF was given NINE OPPORTUNITIES to provide a proper breath sample but she failed to do so.  He said in his report that IF was giving shallow breath samples and on some occasions would not provide any breath.  IF did not later recall any of this.  IF was taken to the hospital and the officer went with her.  At the hospital IF became more lucid and she had a discussion with the officer about her previous consumption of alcohol indicating to the officer that she had “one drink at 10 o’clock”.  The officer issued her an IRP Notice of Driving Prohibition.  IF hired Jamie Butler to fight the IRP driving prohibition. Affidavit evidence was produced from IF confirming her limited alcohol consumption (which was confirmed by her father’s written statement) and confirming her injuries.  As IF did not recall much before she got to the hospital she could not directly refute the officer’s written statement as to what exactly happened during the breath sampling.  She did, however, indicate that she had NO REASON to NOT provide a sample.  Medical clinical records were obtained from the hospital and later treatment records from her family physician were also produced.  Photographic evidence of IF’s facial lacerations and chest bruises were also produced.  An expert report from a forensic expert (Nizar Shajani) indicated was submitted that indicated that IF would not have been impaired by the coffee and baileys and further indicated that “some subjects with respiratory conditions cannot provide adequate samples”.  Jamie Butler argued that the officer had to basically be an idiot to make a demand and attempt sampling from IF under these circumstances.  Decision:  You have satisfied me that you did not fail or refuse to comply with the ASD demand”.   Result:  revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (December 2017)

Post-script:   This was a challenging IRP appeal simply because IF could not remember much of the sampling procedure.  She was disoriented from the head injury and medications she had received from the EHS.  She therefore could not refute much of what the officer had written in his report about her “impaired condition” and failure to provide samples.  Medical, expert and photographic evidence was KEY in this successful appeal.

RSBC v. WH – IRP APPEAL SUCCESSFUL –  REFUSAL TO PROVIDE SAMPLE – ASTHMA DEFENCE — DRIVER HAS ASTHMA AND CANNOT PROVIDE PROPER ASD BREATH SAMPLES – REASONABLE EXCUSE

Facts:  On July 15, 2017 the Driver, WH, was out with his girlfriend, TK, at a function in Richmond.  WH had consumed two alcoholic beverages over the course of the night   after which WH drove himself and his girlfriend TK downtown Vancouver.  On the north side of the Granville Street bridge was a police counterattack roadblock and WH was stopped as a matter of course.  When questioned WH lied to the officer and said he had nothing to drink.  The officer asked WH to step out of the vehicle and once outside the officer advised WH that he smelled alcohol on WH’s breath. WH then admitted to prior alcohol consumption. The officer made a demand for breath samples and produced an ASD for WH’s sample.  WH, a foreign student, was very nervous about this procedure and about his being caught up in a lie.  WH suffers from asthma (a respiratory condition that makes it difficult to breathe deeply at times).  WH was given three attempts to provide a sample and he blew into the ASD on each occasion but he did not provide a proper sample. Before and during the third attempt WH advised the officer that he had asthma and that he was extremely nervous and that this had activated his asthma condition.  The officer said to WH “he had heard that excuse before” and continued to press for samples.  WH, who only infrequently had asthmatic episodes (and thus did not have any medication or inhaler) said “I have asthma and cannot even breathe right now”.  The officer deemed this a refusal and served WH with a 90 IRP Notice of Driving Prohibition.  WH hired Jamie Butler to fight the IRP driving prohibition. Affidavit evidence was produced from both WH and his girlfriend TK supporting WH’s limited alcohol consumption on this night and importantly confirming that WH did indeed have past issues with asthma. No medications or doctor’s reports were filed as the asthmatic condition was transitory and infrequent and WH was not under any doctor’s orders or medication for this condition. Jamie Butler argued that the episodic asthmatic condition brought on by WH’s extreme nervousness prevented the proper sampling from occurring. An expert report from forensic expert Nizar Shajani was filed indicating that “some people with respiratory problems like asthma cannot fulfill the sampling parameters”.  Decision:  “Did you not fail or refuse to comply with an ASD demand”?  You have satisfied me that you did not fail or refuse to comply with the ASD demand”.   Result:  revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (August 2017)

Post-script:   This is really a case where WH had a “reasonable excuse” for not providing a breath sample when same was legally demanded of him.  The officer should have waited for the asthmatic condition to dissipate and treated WH at face value when informed about the asthmatic condition. 

RSBC v. AC – ADP APPEAL SUCCESSFUL –  REFUSAL TO PROVIDE SAMPLE -DRIVER FLEES POLICE AFTER NOT CONSUMING ANY ALCOHOL BUT LATER REFUSED TO PROVIDE A BREATH SAMPLE —  INSUFFICIENT GROUNDS FOR POLICE TO ISSUE A DEMAND FOR A DRIVER’S BREATH SAMPLE AS NO LAWFUL GROUNDS FOR THE BREATH DEMAND EXISTED – ALSO NO VERBAL REFUSAL BUT ONLY A SHAKING OF HEAD TO A DEMAND FOR SAMPLES

Facts:  On August 5, 2017 AC was at home watching Netflix and received a called from his friend (CL) who was in Vancouver and asked him to drive his car home to Richmond.  CL was drunk. AC had not consumed any alcohol.  AC was driven by his girlfriend to Vancouver and located CL who had a young female with him.  AC got into CL’s Range Rover and commenced driving.  At 1:50 am AC turned onto the Georgia Viaduct and saw a police roadblock ahead.  AC reversed his position for about a block and parked CL’s vehicle in a spot at the side of the road.  This was seen by a passing officer (Cst. M) who U-turned.  AC, fearing arrest, immediately departed the scene on foot.  He jumped a barricade and went down a stairwell, evading police pursuit.  Cst. M stopped and radioed for help.  Cst. M learned AC’s name from CL who stayed at the scene in the Range Rover.  10 minutes later a second officer (Cst. X) located AC fleeing and called out his name.  AC stopped and was arrested by Cst. X for fleeing the police.  AC explained to Cst. X that he had NOT consumed any alcohol and had only fled because of previous wrongful arrests by the police.  Cst. M later arrived on scene and took over the investigation.  Cst. M’s filed report noted AC “looked intoxicated”, had a “flushed face and poor fine motor coordination”.  Cst. M issued AC a demand for a breath sample and she indicated in her report that AC indicated “he would not” be providing a breath sample.   Cst. M’s filed report seemed to suggest a smell of alcohol was not ONLY AFTER this alleged verbal refusal.  The officer issued AC an ADP 90 day driving prohibition and went further issuing criminal charges against AC for his “failure to provide a breath sample”. AC hired Jamie Butler to fight both the ADP 90 day driving prohibition and the criminal charges that followed it.  Affidavit evidence was produced from AC, his friend (CL), CL’s female passenger and AC’s girlfriend, all supporting the fact the AC had not consumed any alcohol that night. Further AC indicated in his Affidavit that he did not “VERBALLY” refuse a breath demand but simply shook his head from side to side and said “I have not been drinking and will not be providing a sample”.  He indicated he did not feel he had to provide a sample because he had not consumed any alcohol prior.   Decision:  “Did you not fail or refuse to comply with an ASD demand”?  You have satisfied me that you did not fail or refuse to comply with the ASD demand”.   Result:  revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (August 2017)

Post-script:   AC fled and evaded a Police Sobriety Road check by backing out and later running from the police.  The reason he did this was for reasons other than a guilty conscience in trying to evade any drinking and driving related repercussions (he simply fled because he had been wrongfully arrested before and did not want any hassles on this night). 

RSBC v. RS – IRP APPEAL SUCCESSFUL –  OPEN ALCOHOL IN THE VEHICLE DISGUISED IN PLASTIC WATER BOTTLE  — “MOUTH ALCOHOL” FROM RECENT DRINK AFFECTING RELIABILITY OF ASD RESULTS – DRIVER PROVIDED TWO ASD SAMPLES BOTH WITH “FAIL” READING – BOTH ASD TESTS FOUND TO BE UNRELIABLE

Facts:  On July 2, 2017 the Driver (RS) had spent the day riding horses with friends and then drove to her residence. At her residence she showered, prepared dinner and consumed 1 and a 1/2 alcoholic apple ciders.  While consuming the second cider she realized that she was out of cider and wanted more.  RS poured the second half of the contents of the remaining cider into a water bottle and drove the short distance from her residence to a Cold Beer and Wine Store in Langley.  She was sipping from this cider disguised in a water bottle while she was driving. When she pulled her vehicle into the Cold Beer and Wine Store and police officer pulled in behind her at 10:30pm.  The officer initially advised RS that she was being stopped for speeding which is something RS denied.  The officer smelled alcohol on RS’s breath and RS admitted to the officer that she had “consumed 2 ciders 2 hours ago”.  (This admission was not entirely correct but was made because RS was nervous about the open alcohol in the water bottle in her vehicle).  The officer read an ASD demand to RS at 10:32 pm and was provided with two breath samples from RS into two separate ASD instruments, both tests read FAIL indicating BAC over 100 milligrams per cent (ie. well over the legal limit).  The two tests were completed at 10:34pm and 10:39 pm am respectfully. The officer issued an IRP Notice of Driving Prohibition.   RS hired Jamie Butler to fight her IRP 90 day driving prohibition.  At the oral appeal an Affidavit was introduced indicating RS’s drinking pattern which was unconfirmed by anyone else as she had been drinking alone.  RS described how she had been sipping from the open alcohol disguised in the water bottle immediately prior to the police stop (ie. at 10:28 pm).   Forensic Expert Nizar Shajani provided an expert report indicating that, given the weight and times of consumption, RS’s blood alcohol concentration should have been under the legal limit if she only consumed the alcohol she indicated she had consumed and further indicated that ASD instruments can be adversely affected by “mouth alcohol” introduced into a subject’s mouth by way of a recent consumption.   Decision:  “Did the ASD register a “FAIL” but your BAC was less than 80 mg%?” You have satisfied me that your BAC was less than 80 mg% even though the ASD registered a “FAIL”.   Result:  revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (July 2017)

• Postscript: RS had admittedly been consuming open alcohol while driving and it is this very fact that helped her win this IRP appeal as her last consumption of alcohol was within 15 minutes of both ASD tests performed by the officer.

RSBC v. NR – IRP APPEAL SUCCESSFUL —  OFFICER MISDESCRIBES THE ASD TEST RESULTS IN HIS REPORT BY DESCRIBING A SET OF STATUS MESSAGES THAT COULD NOT POSSIBLY OCCUR –  DRIVER PROVIDED ONE ASD SAMPLE WITH A “FAIL” READING – THEN ATTEMPTED BUT FAILED TO PROVIDE A SECOND ASD SAMPLE — ASD TEST FOUND TO BE UNRELIABLE AND DRIVER WITHIN LEGAL LIMIT OWING TO FAULTY BREATH TEST READING

Facts:  On April 8, 2017 the Driver (NR) had picked up two friends and had driven them from Richmond to a well-known Indian restaurant in Delta.  At the restaurant NR consumed one glass of wine from 9:40 pm until just before leaving at 12:33 am. She got into her car with her two friends (SS and JB) and left the parking lot.  SS lived in Surrey and had been drinking.  SS was providing NR with directions to his house.   SS’s directions were not clear to NR who changed lanes repeatedly back and forth which drew the attention of the police.  The police stopped NR at 12:39 am.   The officer indicated (in his written report) that NR admitted to having consumed some alcohol at about 9:30pm.  The officer, Cst. Clarke, read an ASD demand to NR and NR immediately provided him with a breath sample into an ASD at 12:44 am.  The result read FAIL indicating BAC over 100 milligrams per cent (ie. well over the legal limit).   NR was offered a second ASD test on a different instrument and Officer Clarke indicated that this was possible.  Thereafter Cst. Clarke’s filed report did not adequately explain exactly what occurred.  There was a substantial (20 MINUTE) time period that was not really accounted for.  Cst. Clarke indicated that during the second set of tests “NR was given 4 opportunities … always with “NO GO results””. NR hired Jamie Butler to fight her IRP 90 day driving prohibition.  At the oral appeal an Affidavit was introduced indicating NR’s drinking pattern which was confirmed by written statements from SS and JB.  Forensic Expert Nizar Shajani provided an expert report indicating that NR’s blood alcohol concentration should have been under the legal limit if she only consumed the alcohol she indicated she had consumed and further indicated that ASD instruments can be adversely affected by “mouth alcohol” introduced into a subject’s mouth by way of a recent consumption of alcohol.  Importantly Mr. Shajani also described in his report how a properly functioning ASD could not yield four consecutive “NO GO” status message reading and ergo the second ASD instrument either was not functioning properly or the officer was not utilizing the ASD as trained and instructed.   Decision:  “Did the ASD register a “FAIL” but your BAC was less than 80 mg%?” You have satisfied me that your BAC was less than 80 mg% even though the ASD registered a “FAIL”.   Result:  revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (April 2017)

Postscript:  here the decision was based upon “mouth alcohol” affecting a singular ASD test result however the officer had indicated in his report a set of circumstances that could not possibly have occurred according to the submitted DEFENCE EXPERT REPORT.  As the officer described an impossibility the adjudicator, in this author’s opinion, had no recourse but allow the appeal.

RSBC v. WL – IRP APPEAL SUCCESSFUL –  “MOUTH ALCOHOL” FROM RECENT DRINK AFFECTING RELIABILITY OF ASD RESULTS – DRIVER PROVIDED TWO ASD SAMPLES BOTH WITH “FAIL” READING – BOTH ASD TESTS FOUND TO BE UNRELIABLE AND DRIVER WITHIN LEGAL LIMIT OWING TO FAULTY BREATH TEST READINGS

Facts:  On May 21, 2017 the Driver (WL) had met up with her two girlfriends around midnight.  WL consume 1 vodka mixed drink and 1 beer while there and left at between 2:35am and 2:38am.  She left in her car with one of her girlfriends (TF) to drive TF home and then carry on to her residence. WL lived within a 3 minute drive of the residence where she had been consuming alcohol.  At 2:41am she drove right into a police sobriety checkpoint. She admitted to having previously consumed some alcohol and the officer noted no other symptoms of impairment aside from the smell of alcohol on her breath. The officer read an ASD demand and was later provided with two breath samples from WL into two separate ASD instruments, both tests read FAIL indicating BAC over 100 milligrams per cent (ie. well over the legal limit).  The two tests were completed at 2:44 am and 2:47am respectfully. The officer issued an IRP Notice of Driving Prohibition.   WL hired Jamie Butler to fight his IRP 90 day driving prohibition.  At the oral appeal an Affidavit was introduced indicating WL’s drinking pattern which was confirmed by a written statement from TF.  Forensic Expert Nizar Shajani provided an expert report indicating that TF’s blood alcohol concentration should have been under the legal limit if she only consumed the alcohol she indicated she had consumed and further indicated that ASD instruments can be adversely affected by “mouth alcohol” introduced into a subject’s mouth by way of a recent consumption of beer/vodka.   Decision:  “Did the ASD register a “FAIL” but your BAC was less than 80 mg%?” You have satisfied me that your BAC was less than 80 mg% even though the ASD registered a “FAIL”.   Result:  revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (June 2017)

• Postscript: recently consumed alcohol (ie. alcohol consumed within 15 minutes of ASD testing can and will cause an ASD to produce a falsely high ASD test result (here two FAIL results).

RSBC v. NR – IRP APPEAL SUCCESSFUL –  “MOUTH ALCOHOL” FROM RECENT DRINK AFFECTING RELIABILITY OF ASD RESULTS – DRIVER PROVIDED TWO ASD SAMPLES BOTH WITH “FAIL” READING –  ADJUDICATOR FINDING BLOOD ALCOHOL CONTENT OF DRIVER LESS THAN 80 MG% DESPITE ASD FAILURES ON TWO SEPARATE TEST PERFOMED ON TWO SEPARATE ASD UNITS

Facts:  On March 20, 2017 the Driver (NR) had been at a Karaoke type of restaurant in Delta.   NR had met up with 3 others at the restaurant and NR was to be the sober “designated driver” for the 3 of them.  NR was at the restaurant for just over 3 hours and sipped on ONE GLASS OF WINE throughout the night. NR finished the last sip of wine at approximately 12:33 am.  NR and the 3 others left in NR’s car and drove a short 650 meters and during this time she was noted by an on-duty RCMP officer to be changing lanes from the fast to slow lane abruptly and cross the broken lines twice.  NR was pulled over.  The officer noted NR had slurred speech and said NR fumbled with her driver’s  license.  The officer read a demand and two separate breath samples were taken on two separate ASD devices with FAIL results at 12:44 am and 12:57 am. NR hired Jamie Butler to fight her IRP 90 day driving prohibition.   In the RCMP officer’s filed IRP report Mr. Butler noted the officer had irreconcilable difficulties describing the operability requirements of the second instrument (which was described in his filed report as an Alco-Sensor FST) and that he misdescribed the actual digital readings and seemingly confused it with the operability of a different type of ASD unit (ie. an Alco-sensor IW DWF).   This made the results of the second ASD test suspect as the officer’s report was WRONG in his description of the operability requirements of the described ASD unit in his filed report.  This was exposed by the Mr. Butler through the use of an expert report from Forensic Expert Nizar Shajani that was submitted on the IRP oral hearing.  As the first ASD test was taken within 15 minutes of NR’s last sip of wine it was argued that this test was affected by “mouth alcohol” and that this first ASD test result was unreliable and the FAIL result was not indicative of NR’s actual blood alcohol concentration.   Three statements were filed from the 3 passengers in NR’s vehicle and all confirmed that NR only drank ONE glass of wine throughout the evening.   Decision:  “Was your BAC (blood alcohol concentration) less than 80 mg% even though the ASD registered a “FAIL”?  You have satisfied me that your BAC was less than 80mg% even though the ASD registerd a “FAIL”    Result:  revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (May 2017)

Here as a post-script it is noted that even though the SECOND ASD result was taken about 24 minutes after the last sip of wine (and therefore likely NOT affected by ‘mouth alcohol’ from the last sip of wine) the Adjudicator was convinced the second test was not confirmatory of the first ASD test (in which there was a FAIL result within 15 minutes of the last sip of wine) – the crucial factor here was that the officer mis-described how the second ASD unit could have operated and this was exposed through the use on an expert report from a recognized forensic alcohol expert, Nizar Shajani, resulting in a BIG WIN for the client.

RSBC v. FS – IRP APPEAL SUCCESSFUL –  “MOUTH ALCOHOL” FROM RECENT DRINK AND SIDE EFFECTS OF NAPROXEN MEDICATION  CAUSING HEARTBURN AND AFFECTING RELIABILITY OF ASD RESULTS – DRIVER PROVIDED TWO ASD SAMPLES BOTH WITH “FAIL” READING – BOTH ASD TESTS FOUND TO BE UNRELIABLE AND DRIVER WITHIN LEGAL LIMIT

Facts:  On March 25, 2017 the Driver (FS) had been playing hockey in a men’s league at a neighbourhood rink.  After the hockey game FS joined his teammates in the changing room and drank 2 cans of beer.   FS suffers from various ailments for which he takes a variety of medications, including NAPROXEN.   One of the listed common side effects of taking naproxen is “indigestion, and/or heartburn”.  After consuming the beer in the locker room FS drove his vehicle a short distance, did not completely stop at a red light when he turned right onto the highway and was stopped by the police.  The officer noted that FS had both his windows both completely open at the time of the officer’s approach and he noted the fresh smell of alcohol of the breath of FS and his red glassy eyes.  He noted FS avoiding eye contact and that he was speaking downward to mask the smell of alcohol from his breath, all of which raised the officer’s suspicion.  The officer read an ASD demand and was later provided with two breath samples from FS into two separate ASD instruments, both tests read FAIL indicating BAC over 100 milligrams per cent (ie. well over the legal limit).  The officer issued an IRP Notice of Driving Prohibition.   FS hired Jamie Butler to fight his IRP 90 day driving prohibition.  At the oral appeal an Affidavit was introduced indicating FS’s drinking pattern and his explanation for the incomplete stop at the red light and other suspicious roadside behaviour.  FS indicated that the combination of the beer after the game and the naproxen medication caused him to suffer the ill-effects of heartburn including the repeated surge of stomach contents to the back of his throat. FS indicated he was made nervous by the officer and this aggravated his heartburn condition.  Forensic Expert Nizar Shajani provided an expert report indicating that FS’s blood alcohol concentration should have been under the legal limit if he only consumed two beers and further indicated that ASD instruments can be adversely affected by “mouth alcohol” introduced into a subject’s mouth by way of a recent sip of beer or regurgitation of stomach contents containing beer occasioned by heartburn.   Decision:  “Was the result of the ASD on the basis of which the Notice of Prohibition was served not reliable?  I have considered the oral and written submissions provided by Mr. Butler on your behalf and the evidence provided by the police.  You have satisfied me that the results of the ASDs were affected by mouth alcohol and, as such, not reliable.”   Result:  revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (April 2017)

Here as a post-script it is noted that the ILL-AFFECTS of HEARTBURN can and WILL falsely elevate ASD tests to make the readings unreliable if a subject has alcohol from a recent drink undigested in his stomach and that subject regurgitates the contents within 15 minutes prior to taking a breath test on any ASD currently used by the police in BC.

RSBC v. AG – IRP APPEAL SUCCESSFUL –  “MOUTH ALCOHOL” FROM RECENT DRINK AFFECTING RELIABILITY OF ASD RESULT – POLICE STOPPED DRIVER AFTER VEHICLE BLEW STOP SIGN —  POLICE FOUND OPEN BEER AND A BOTTLE OF WHISKEY IN VEHICLE — DRIVER PROVIDED ONE ASD SAMPLE WITH “FAIL” READING –  BREATH SAMPLE WAS TAKEN WITHIN 11 MINUTES FROM DRIVER’S LAST SIP FROM THE OPEN BEER IN HIS VEHICLE -– ASD TESTS FOUND TO BE UNRELIABLE AND DRIVER WITHIN LEGAL LIMIT

Facts:  On February 4, 2017 the Driver (AG) picked up two friends in his pickup to attend a concert – one friend brought a case of beer and the other brought a bottle of whiskey into AG’s vehicle.  AG drove to another friend’s house (SB’s house), parked his pickup and all three friends took a cab from there to the concert.  AG drank several beer at the concert and slept at SB’s house. AG awoke early (at 2:35am) to commence a drive to a remote work location in Northern BC.  While waiting for his pickup to warm up he consumed a swig of beer from a beer can that his friend had left in his pickup the night before.  Two minutes later he drove a short distance and through a stop sign.  The police stopped him and noticed AG’s breath smelled of liquor, he appeared groggy, confused at times, had slurred speech and bloodshot and watery eyes.  AG admitted to the officer to having previous consumed “a few hours ago” at the concert but said nothing about sipping from the beer moments earlier.    Police asked about the alcohol in his pickup and AG indicated it belonged to friends.  Police demand a breath sample at the concert.  AG provided a FAIL reading on one ASD at 2:51 am.  This singular breath sample was taken within 11 minutes of the swig of beer. Officer issued an IRP Notice of Driving Prohibition and Vehicle Impoundment.  AG hired Jamie Butler to appeal it.  Evidence was presented by way of Affidavit in which AG indicated he consumed 4 beer at the concert the night before and had, just before the police stop, consumed from the beer left in his pickup the night before.  He agreed that he made a “rolling stop” through the stop sign. Forensic expert Nizar Shajani provided an expert report indicating that alcohol from a last drink can adversely affect and artificially inflate the readings on an ASD where a “15 minute face to face observation period is not conducted by the police”.  No such observation period was performed on AG by the police officer.  Mr. Shajani suggested the 4 beers consumed from the night before should not have yielded BAC testing over 80 mg%.  Decision:  “Was your BAC less than 80mg% even though the ASD registered a “FAIL””.  You have satisfied me that your BAC was less than 80 mg% even though the ASD registered a “FAIL”.”   Result:  revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (February 2017)

Here as a post-script it is noted that the police officer did not observe AG for the “required 15 minutes” because AG had allegedly indicated to him that his last drink was “a few hours ago”.   AG indicated in his Affidavit that he took a swig of beer minutes before the police stop and about 11 minutes from the time of the breath test.  The adjudicator in this case must have been convinced “on a balance of probabilities” that AG’s time estimates and consumption pattern were truthful.

RSBC v. AS  –  IRP APPEAL SUCCESSFUL –  ROADSIDE REFUSAL — ANXIETY-DRIVEN ASTHMATIC CONDITION AND CHEST INJURIES FROM MVA CAUSES DRIVER TO BE UNABLE TO GIVE PROPER BREATH SAMPLES

Facts:  On August 1, 2016 long weekend AS attended at a restaurant with his friends and consumed some Mexican food and a few beers.  AS drove home and was involved in a motor vehicle accident where he rear-ended another vehicle stopped at a red light causing severe damage to both vehicles.  AS had become frantic and left then came back to the scene.  Police were called and AS was found sitting on the curb.  Officer indicated that AS was “unable to sit himself up”, had “slurred speech”, had “an odour of liquor about him” and “glossy eyes”.  Police demanded a breath sample of AS.  An ASD was presented to AS and the police report indicated AS did not make a proper seal with his lips around the mouthpiece and that he thereafter only “pretended to blow”.  AS was given four opportunities to provide samples and police then deemed a “refusal”.  Officer issued an IRP Notice of Driving Prohibition and Vehicle Impoundment.  AS hired Jamie Butler to appeal it.  Evidence was presented by way of Affidavit in which AS indicated he had previously consumed 2 beer and produced a restaurant receipt as proof.  AS indicated that he had been distracted by incoming text messages at the time of the accident and due to the severity of the mva had smashed his head and chest on the airbags.  His knee was injured in the mva and this is why he could not walk or stand properly after the mva.   He became anxious at the scene after the mva and his pre-existent asthmastic condition plus his chest injury made it difficult for him to breath normally.  He indicated he tried to provide breath samples but owing to his anxiety-driven asthma and chest injuries he could not do so.  Forensic expert Nizar Shajani provided an expert report indicating that given the amount of alcohol consumed by AS, his potential maximum BAC would have been below the legal limit.  Mr. Shajani indicated that not all subjects can produce enough air flow to satisfy the ASD, especially those with respiratory conditions like asthma.  Decision:  “You have satisfied me that you did not fail or refuse to comply with an ASD demand”.   Result: It took the RSBC 6 months to issue a written decision and during that time AS had a temporary driver’s license permitting him to drive. Later revocation of driving prohibition – no fines imposed – and all towing and storage fees reimbursed to AS   (February 2017)

Postnote:   As a result of the mva and police investigation AS was breached by ICBC who would not initially reimburse him for his SUV which was substantially damages and written off.  He also faced possible civil consequences owing to injuries caused to those injured  the mva.   The IRP decision was issued and ICBC reimbursed AS for the full value of the SUV.  End result:  one very happy client!

RSBC v. RT – IRP APPEAL SUCCESSFUL – MOUTH ALCOHOL DEFENCE —  RECENT VOMITTING LEADS TO UNRELIABLE BREATH TESTING ON TWO ASD TESTS TAKEN WITH TWO DIFFERENT ASD INSTRUMENTS

Facts:  On January 21, 2017 the Driver (RT) departed in his car from a dinner party where he had drank some wine and had later vomited. Blocks from the party the police were setting up a Counter-Attack police roadblock.  RT drove into and through the roadblock and the police yelled and threw a flashlight at his car to get his attention.  RT gradually pulled over.  Officer noted smell of alcohol and when questioned RT indicated his last alcoholic drink was “about 2 hours ago”.  Two roadside ASD tests were performed with two separate ASD instruments both yielding FAIL results. Officer issued an IRP Notice of Driving Prohibition and Vehicle Impoundment.  RT hired Jamie Butler to appeal it.  Evidence was presented by way of Affidavit in which RT indicated that at the moment he went through the roadblock he thought it was only in the preliminary stages of being set up by the police.  He further indicated that earlier he had vomited and then left the dinner party he was attending.  He indicated that he had also vomited on the side of the road while at the police roadblock between the two breath samples.  The breath samples were taken 12 minutes apart and there was no evidence of vomiting or recent vomiting discussed in the police report filed by the officer.  Forensic expert Nizar Shajani provided an expert report indicating that alcohol can last in the stomach for several hours and that vomiting up alcohol from the stomach to the mouth area can adversely affect breath test readings on an ASD by falsely elevating the test results if proper precautions are not taken by the police to ensure accurate breath testing. Mr. Shajani suggested the two glasses of wine consumed should not have yielded BAC testing over 80 mg%.  Decision:  “Having considered the evidence before me, you have satisfied me that the ASDs did not register a “FAIL” as a result of your BAC being not less than 80 mg %.  Result:  revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (February 2017)

Note:  in this case in order to come to her conclusion the IRP Appeals adjudicator must have agreed that vomiting occurred and affected both roadside ASD tests taken 12 minutes apart (this despite the officer not mentioning the vomiting at all in his report).

RSBC v. JJ – IRP APPEAL SUCCESSFUL –  “MOUTH ALCOHOL” FROM RECENT DRINK AFFECTING RELIABILITY OF ASD RESULT — DRIVER TURNS AROUND AT POLICE ROADBLOCK AND STOPPED BY POLICE A BLOCK AWAY WHERE NUMEROUS IMPAIRMENT SYMPTOMS NOTED —  DRIVER PROVIDED ONE ASD SAMPLES WITH “FAIL” READING AFTER PREVIOUSLY CONSUMING COCKTAILS AT A NEARBY RESTAURANT –  BREATH SAMPLE WAS TAKEN WITHIN 7 TO 10 MINUTES OF LAST RUM AND COKE -– ASD TESTS FOUND TO BE UNRELIABLE AND DRIVER WITHIN LEGAL LIMIT

Facts:  On January 1, 2017 the Driver (JJ) met a friend at a popular restaurant in Burnaby where he ate a meal and finished 2 rum and cokes.  JJ’s friend purchased another rum cocktail for JJ in an effort to get him to stay and JJ drank half of it before he left at 11:13pm.  JJ drove 2 minutes and ran into a police counterattack roadblock at 11:15pm.  JJ was noticed by police to avoid the roadblock by U-turning in a nearby around in a bus loop.  He was stopped by a police officer who stated JJ was noticeably drunk.  Officer indicating JJ “smelled heavily of alcohol; had bloodshot glassy eyes; could hardly keep his head up; was swaying side to side; could barely focus on the officer; was unable to walk straight; had to be prevented from walking into traffic, etc.”   When questioned by the officer allegedly JJ said he “had a couple of drinks, 20 minutes ago”.   JJ provided a FAIL reading on one ASD at 11:20pm.  This singular breath sample was taken within 7 to 10 minutes of the last rum and coke. Officer issued an IRP Notice of Driving Prohibition and Vehicle Impoundment.  JJ hired Jamie Butler to appeal it.  Evidence was presented by way of Affidavit in which JJ indicated that despite what he told the officer at the roadside he had actually consumed the last rum and coke 5 minutes from the time he was pulled over.  JJ indicated he did not purposely avoid the police roadblock but was only correcting his direction in the bus loop.  He indicated that the officer grabbed him by the arm when he exited the vehicle and disputed the officer’s characterizations of the balance symptoms.  Forensic expert Nizar Shajani provided an expert report indicating that alcohol from a last drink can adversely affect and artificially inflate the readings on an ASD where a “15 minute face to face observation period is not conducted by the police”.  No such observation period was performed on JJ.  Mr. Shajani suggested the 2 ½ rum and cokes should not have yielded BAC testing over 80 mg%.  Decision:  “Was your BAC less than 80mg% even though the ASD registered a “FAIL””.  You have satisfied me that your BAC was less than 80 mg% even though the ASD registered a “FAIL”.  I find this issue to be determinative of this review.”   Result:  revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (January 2017)

Here as a post-script it is noted that the police officer did not observe JJ for the “required 15 minutes” because JJ had allegedly indicated to him that his last drink was “20 minutes ago”.   JJ indicated in his Affidavit that his last sip of rum and coke was 5 minutes before the police stop and 7 to 10 minutes from the time of the breath test.  The adjudicator in this case must have been convinced “on a balance of probabilities” that JJ’s time estimates were accurate.

RSBC v. GB – IRP APPEAL SUCCESSFUL –  MOUTH ALCOHOL ADVERSELY AFFECTING ASD TESTS — DRIVER STOPPED BY POLICE AFER SEEN LEAVING PUB – ADMITS VERY RECENT CONSUMPTION – OFFICER WAITS 15 MINUTES FROM DRIVER’S LAST ALCOHOLIC DRINK TO SECURE “RELIABLE” BREATH SAMPLE – DRIVER WAITS THE 15 MINUTES IN HIS OWN VEHICLE  AND NOT UNDER OBSERVATION OF OFFICER – DRIVER VOMITS DURING 15 MINUTES OBSERVATION PERIOD – MOUTH ALCOHOL RESULTED IN AFFECTING THE TWO ASD TEST RESULTS — ASD TESTS FOUND TO BE UNRELIABLE

Facts:  On December 12, 2016 the Driver (GB), a retired gentlemen, had been working on renovations at his house and then sent to a well-known Pub in Salmon Arm.  He consumed a meal and 2 beers and left the pub.  Police stopped him 2 blocks from the Pub (which was also 3 blocks away from his house) and when questioned by the police, admits having consumed the 2 beers and tells the officer he finished the second beer “2 minutes ago”.  Officer makes a demand for breath samples but because of the recent admitted consumption the Officer decided to wait 15 minutes from the time of the last admitted drink before administering the ASD test(s).  Officer allowed GB to wait during this time, outside her area of observation, and inside his vehicle.  The officer who waited in her vehicle, then collects GB from his own vehicle and obtains two breath samples on two different devices.  The results of each test was “FAIL” signifying a BAC of over 100mg%.   Officer issued an IRP Notice of Driving Prohibition and Vehicle Impoundment.  GB hired Jamie Butler to appeal it.  Evidence was presented by way of Affidavit in which GB provided his drinking pattern (with times and amounts as indicated).  He further indicates that during the police officer “observation period” (or the waiting period before the first ASD test) he vomited while inside his vehicle.  He did not tell the officer about this when she came to get him.  Forensic expert Nizar Shajani provided an expert report for GB which indicated that given GB’s weight and pattern of alcohol consumption that GB’s BAC would have been lower than 50%mg. Mr. Shajani indicated in his report that recent regurgitation by means of vomiting can adversely affect breath test readings on an ASD by falsely elevating the test results if a “proper 15 minute pre-test face to face observation period had not been conducted”. It was argued that the officer wrongly permitted GB to remain outside her area of observation during the waiting period prior to the testing and that the testing was unreliable as a result of “mouth alcohol” affecting the tests.  Decision:  ”I find one determinative issue in your case: “Was your BAC less than 80mg% even though the ASD registered a “FAIL””.  You have satisfied me that your BAC was less than 80 mg% even though the ASD registered a “FAIL”.   Result:  driving prohibition revoked – no fines imposed – all towing and storage fees paid by RSBC. (January 2017)

Here as a post-script it is noted that though the police officer did the “RIGHT THING” by waiting a prescribed time for alcohol to dissipate from the driver’s mouth, she SHOULD HAVE kept a continued watch on the driver during this “15 minute observation period” instead of allowing the driver to escape her view — as a result the testing would not be reliable where mouth alcohol from recent consumption brought up to the throat by vomiting occurred, such as in this case.

RSBC v. OI – IRP APPEAL SUCCESSFUL –  FAILURE TO PROVIDE BREATH SAMPLE —  DRIVER INDICATED THAT HE HAD NOT CONSUMED ANY ALCOHOL AND ALSO HAD SUNBURNED DRY LIPS AND WAS IN PAIN FROM HANDCUFFS ON HIS WRISTS AT TIME OF TESTING AND HE TRIED TO PROVIDE A BREATH SAMPLE BUT WAS UNABLE TO DO SO – OFFICER DEEMED A REFUSAL BUT CONFLICTED WITH HIS POLICE REPORT THAT INDICATED THAT HE OFFERED DRIVER A “SECOND TEST” —  NO FAILURE TO COMPLY FOUND ON APPEAL

Facts:  On November 28, 2016 the Driver (OI), a businessman, had been working on winterizing his boat at a marina, returned home, had a late dinner and went to sleep.  His wife called him for a ride home from her girlfriend’s residence.  OI’s wife had over-consumed alcohol.  OI drove from West Vancouver to pick his wife up in North Vancouver.  On the way back home he was stopped by the police as a result of his own admitted failure to stop at a stop sign. Officer noted the smell of alcohol (OI denied consumption and indicated to the officer at the time that it was his wife (passenger) that had consumed alcohol).  Officer making a breath demand regardless.   Officer indicated in his report that OI became argumentative with him — arguing with the officer about the officer’s failure to have grounds for a breath sample owing to the fact that OI had not consumed any alcohol and was merely picking up his wife.  Officer did not relent and later put OI in handcuffs and had OI attempt to provide breath samples while cuffed. Officer deems refusal after seven reportedly “feigned” breath attempts. Officer issued an IRP Notice of Driving Prohibition and Vehicle Impoundment.  OI hired Jamie Butler to appeal it.  On the officer’s submitted report he had indicated, without any further explanation, that he had offered OI a “second breath test” even though this was an alleged refusal/failure to provide situation. Evidence was then presented by the defendant by way of Affidavit in which OI indicated that he had not consumed any alcohol that night.  He also indicated that the machine the officer was using had failed to work and that the officer then used a second ASD.  He questioned/argued with the officer about both the ASD machine not working properly and the lack of grounds for the breath demand after which the officer put the handcuffs on him very tightly and OI indicated that he was thereafter wreathing in pain from the handcuffs.  He also indicated that due to a recent trip abroad he had severely cracked and sunburned lips and that owing to the cracked lips and painful conditions brought on by the very tight handcuffs he could not provide proper samples though he made earnest attempts to do so. It was argued by Jamie Butler that the officer did not have the legal grounds for the breath demand in the first place (which is required by the Motor Vehicle Act) and also argued that there was no refusal owing to the conditions under which the samples were alleged to have been taken (ie. with handcuffs on causing pain affecting breathing pattern).  As a result of the sloppy police report it was also argued that there was a live question as to whether the officer had offered a “second test” after deeming a refusal which would appear nonsensical but that there was no police evidence to suggest otherwise.   Decision:  “Did you not fail or refuse to comply with an ASD demand?”  I have carefully considered all of the evidence before me.  You have satisfied me that you did not fail or refuse to comply with a valid ASD demand”   Result:  driving prohibition revoked – no fines imposed – all towing and storage fees paid by RSBC. (December 2016)

• Here as a post-script it is noted that the IRP Appeal Adjudicator did not specifically address that the officer did not actually smell alcohol on the driver and therefore lacked the grounds for a “valid” breath demand but that is the conclusion that one must draw from the decision rendered.

RSBC v. HL – IRP APPEAL SUCCESSFUL –  MOUTH ALCOHOL ADVERSELY AFFECTING ASD TESTS — DRIVER STOPPED BY POLICE ON HIGHWAY MINUTES AFTER HIS CONSUMPTION OF BEER AT A KOREAN RESTAURANT —  DRIVER PROVIDED TWO ASD SAMPLES BOTH WITH “FAIL” READINGS – BOTH ASD READING TAKEN WITHIN 15 MINUTES OF LAST CONSUMPTION OF BEER – MOUTH ALCOHOL RESULTED IN AFFECTING ASD TEST RESULTS — ASD TESTS FOUND TO BE UNRELIABLE

Facts:  On April 2, 2015 the Driver (HL), a foreign student studying in BC, had been at a late movie with a friend, after which he consumed two beer with Korean food at a restaurant in North Burnaby.  He finished the last sip of beer at 11:30 pm and left the restaurant to drive home.  Police stopped him at 11:37 pm on Highway #1 eastbound as a result of a “speeding” infraction.  Symptoms of previous alcohol consumption were noted and a breath demand made by the officer and TWO separate breath samples were given on TWO separate ASD devices at 11:40 pm and 11:45 pm.   Officer issued an IRP Notice of Driving Prohibition and Vehicle Impoundment.  HL hired Jamie Butler to appeal it.  Evidence was presented by way of Affidavit in which HL provided his drinking pattern (with times and amounts as indicated).  Forensic expert Nizar Shajani provided an expert report for HL which indicated that given HL’s weight and pattern of alcohol consumption that HL’s BAC would have been lower than 50%mg. Mr. Shajani indicated in his report that recent consumption can adversely affect breath test readings on an ASD by falsely elevating the test results if a “15 minute pre-test face to face observation period had not been conducted”. It was argued that the testing was unreliable as a result of “mouth alcohol” affecting the tests.  Decision:  ”Having reviewed all of the evidence before me I find there is one determinative issue in this review: “Was your BAC less than 80mg% even though the ASD registered a “FAIL””.  I am satisfied that your BAC was less than 80 mg%.   It took the appeals officer 17 months to reach their decision, in the interim HL was permitted to drive and was not prohibited.  Result:  revocation of driving prohibition – no fines imposed – all towing and storage fees reimbursed to HL. (September 2016)

RSBC v. IH – IRP APPEAL SUCCESSFUL –  DRIVER STOPPED AT POLICE ROADBLOCK AND PROVIDED TWO ASD SAMPLES BOTH WITH “FAIL” READINGS – DRIVER PREVIOUSLY CONSUMED TWO BEER AT A TEAM BBQ BUT WAS ON A COMBINATION OF MEDICATIONS AND HAD EATEN SPICY FOOD THAT GAVE HIM HEARTBURN  – DRIVER REGURGITATING ALCOHOL FROM HIS STOMACH CONTENTS INTO THROAT BEFORE TESTING – ASD TESTS FOUND TO BE UNRELIABLE

Facts:  On July 11, 2014 on a nice summer evening the Driver (IH) had been playing softball in Richmond.  After the game the team had a BBQ and IH had two beers along with chicken wings.  He departed the BBQ and drove his girlfriend from the BBQ to her home to North Vancouver and then attempted to drive back home to Richmond.  IH met up with a counter-attack roadblock on the Second Narrows Bridge after 1:00am.  Officer stopped IH who admitted previous alcohol consumption (1 ½ hours earlier). Officer noted several symptoms: odour of alcohol on breath, drowsy appearance, eyelids droopy, eyes red and watery, speech mildly slurred, swaying when standing.  Officer demanded breath samples and two ASD tests were provided, both with FAIL results.  Officer issued an IRP Notice of Driving Prohibition and Vehicle Impoundment.  IH hired Jamie Butler to appeal it.  Evidence was presented by way of Affidavit in which IH indicated that he been taking a combination of medications as a result of brain tumour surgery and that the side effects of which caused heartburn.  He had heartburn after eating the chicken wings and had left his heartburn medication at home.  He testified that he was regurgitating his stomach contents and suffering from “gag reflex” at the time the ASD tests.  Forensic expert Nizar Shajani provided an expert report indicating that alcohol can last in the stomach for 3 hours and that regurgitation of same can adversely affect breath test readings on an ASD by falsely elevating the test results. Shajani suggested the two beer should not have yielded BAC testing over 80 mg%.  Decision:  ”Having reviewed all of the evidence before me I find there is one determinative issue in this review: “Was your BAC less than 80mg% even though the ASD registered a “FAIL””.  I am satisfied that your BAC was less than 80 mg%.   It took the appeals officer 26 months to reach their decision, in the interim IH was permitted to drive and was not prohibited.  Result:  revocation of driving prohibition – no fines imposed – all towing and storage fees reimbursed to IH. (September 2016)

RSBC v. ND – IRP APPEAL SUCCESSFUL –  DRIVER STOPPED AT POLICE ROADBLOCK AND PROVIDED TWO ASD SAMPLES BOTH WITH “FAIL” READINGS – DRIVER PREVIOUSLY DRANK TWO GLASSES OF WINE BUT WAS ON A COMBINATION OF MEDICATIONS THAT GAVE HER “BAD HEARTBURN” (GASTROESOPHAGAEL REFLUX) – DRIVER REGURGITATING ALCOHOL FROM HER STOMACH CONTENTS INTO THROAT BEFORE TESTING – ASD TESTS FOUND TO BE UNRELIABLE

Facts:  On December 13, 2014 the Driver (ND) attended a nearby casino where she drank 2 glasses of wine while gambling.  She left casino and before entering her car saw a “noticeable police Christmas roadblock” on the road perimeter of the Casino.  She drove into the roadblock and was stopped by the police, admitted consumption and the officer noted symptoms (watery eyes, smell of alcohol on breath) and thus breath samples were demanded and two sample provided into two separate ASD instruments. Both ASD test yielded fail results.  Officer issued an IRP Notice of Driving Prohibition and Vehicle Impoundment.  ND hired Jamie Butler to appeal it.  Evidence was presented by way of Affidavit in which ND indicated that she been taking a combination of medications as a result of recent knee surgery and that those medications gave ND “bad heartburn”.  She was suffering from gastroesophageal reflux (regurgitating of stomach contents into the back of her throat) at the time of the ASD testing.  Forensic expert Nizar Shajani provided an expert report indicating that alcohol can last in the stomach for 3 hours and that regurgitation of same can adversely affect breath test readings on an ASD by falsely elevating the test results. Mr. Shajani suggested the two glasses of wine should not have yielded BAC testing over 80 mg%.  Decision:  ”After reviewing the evidence before me I find there is one issue that is determinative of this review: “Was your BAC less than 80mg% even though the ASD registered a “FAIL””.  I am satisfied that your BAC was less than 80 mg%.   It took the appeals officer 22 months to reach their decision, in the   interim ND was permitted to drive and was not prohibited.  Result:  revocation of driving prohibition – no fines imposed – all towing and storage fees reimbursed to ND. (September 2016)

RSBC v. TC  — IRP APPEAL – SUCCESSFUL – MOUTH ALCOHOL DEFENCE – DRIVER STOPPED FOR SPEEDING HAD A COFFEE AND BAILEYS BESIDE HIM IN THE CAR AND HAD CONSUMED IT WITHIN 15 MINUTES OF PROVIDING TWO FAILED ASD BREATH TESTS– BREATH SAMPLES CONTAMINATED BY MOUTH ALCOHOL CAUSED BY RECENT CONSUMPTION – UNRELIABLE BREATH SAMPLES OBTAINED

Facts:  On August 4, 2016 the driver was stopped for speeding by police at 9:20 am in Chetwynd, BC.  The police officer prepared a sworn report stating that the driver’s breath smelled of “coffee and liquor”.  When asked by the officer about whether he had been drinking the driver admitted he had consumed “last night”.  Officer demanded breath samples based upon the smell coming from driver’s breath.   Two FAIL results were obtained on two separate ASDs, the first at 9:26 am and the second at 9:29 am.  Officer issued an IRP Notice of Driving Prohibition and Vehicle Impoundment.  Driver hired Jamie Butler to fight the IRP 90 day driving prohibition.  On appeal an Affidavit from the driver (TC) indicated that he had consumed 6 beers the night before, woke up, prepared a coffee and put Baileys Irish Cream in it, he took the coffee with him in his car when he dropped off his friend.   The driver admitted to speeding on the way home but indicated he was sipping from his coffee and Baileys drink minutes before the police stopped him.  TC’s friend also provided confirmatory statement.  Forensic expert Nizar Shajani provided a report indicating that the alcohol from the 6 beer consumed the night before would have been eliminated by the body at 9:20 am and that coffee consumed with Baileys consumed at the times suggested in the Affidavit could contaminate the subsequent breath sampling making it unreliable.  Expert Shajani suggested the actual BAC reading would have been 0 to 13 mg %.    Decision:  “You have satisfied me that your BAC (blood alcohol concentration) was less than 80 mgs % even though the ASD registered a “FAIL”.   Driving prohibition revoked, no fine imposed, all towing and storage fees paid by RSBC.   (August 2016)

RSBC v. CS – IRP APPEAL – SUCCESSFUL – NO SMELL OF ALCOHOL OR ADMISSION OF PREVIOUS CONSUMPTION – NO REASONABLE GROUNDS FOR BREATH SAMPLE SO REFUSAL WAS REASONABLE – OFFICER INDICATES HE SMELLED ALCOHOL ON DRIVER’S BREATH – DRIVER INDICATES IN AFFIDAVIT SHE HAD NOT CONSUMED ANY ALCOHOL AND THAT SMELL OF ALCOHOL WAS FROM SPILLED WHISKEY IN THE FOOTWHEEL OF HER VEHICLE

Facts:   On June 1, 2014 Officer saw driver leaving Pub parking lot and “nearly struck a group of people”.   Officer stops vehicle and finds CS and male passenger.  Officer indicates in his sworn report that he “detected a strong odour of liquor on driver’s breath” and when queried driver said her last alcoholic drink was “15 hours ago”.  Officer gave breath demand and driver told officer that “she understood what her jeopardy was” and indicated “her lawyer told her to never provide a breath sample” and refused any testing. Driver issued a Notice of Driving Prohibition. Driver hires Jamie Butler to appeal her IRP driving prohibition.  Affidavit evidence produced by driver explaining that she was merely picking up a friend from the Pub and when she exited the parking lot of the Pub she was merely avoiding several potholes in the parking lot and swerved around them.  She confirming that she had not consumed any alcohol but that her male passenger had placed a mickey of whiskey in a bag under the seat and that the whiskey had unwittingly leaked onto the floor of the vehicle.  An argument was advanced that the Officer was mistaken and did not smell alcohol on the driver’s breath but only smelled alcohol inside the vehicle.  Case law regarding the sufficiency of symptoms amounting to reasonable grounds for a valid breath demand to be made was produced.  The BC case law suggested that absent a smell of alcohol on a driver’s breath OR an admission of “recent consumption” of alcohol from the driver then this officer lacked reasonable grounds to demand a breath sample and thus the driver could legally refuse the “invalid” or unlawful demand. Decision: “I am satisfied that the peace officer did not make a valid ASD demand.”  Driving prohibition revoked, no fine imposed, all towing and storage fees were eventually returned to the driver.  NOTE: It took the RSBC IRP adjudicator almost 26 months to provide a written decision on this matter and no reason was given as to WHY it took so long.   (August 2016)

RSBC v. TB — IRP APPEAL – SUCCESSFUL – MOUTH ALCOHOL DEFENCE – DRIVER HAD CONSUMED ALCOHOL AND MUCH LATER DRIVEN VEHICLE, PULLED OVER AND THEN VOMITED MINUTES BEFORE POLICE INVOLVEMENT – BREATH SAMPLES CONTAMINATED BY MOUTH ALCOHOL CAUSED BY RECENT VOMIT – UNRELIABLE BREATH SAMPLES OBTAINED

Facts:  On May 26, 2014 the driver was found by police at 2:50 am in Parksville, BC.  The police officer prepared a very brief sworn report summarizing that the driving behaviour was “reported by a witness” and that the “driver was operating motor vehicle when stopped by police”.  Officer indicated in his report that the driver exhibited slurred speech, was extremely argumentative and unsteady on his feet.  A demand for samples was made at 2:51 a.m. and one breath sample on an ASD was obtained at 2:54 am which read “FAIL”.  This FAIL result was 4 minutes after the police first dealings with the driver. The driver only gave one breath sample and was served a Notice of Driving Prohibition by the officer. Driver hired Jamie Butler to fight his IRP driving prohibition.  An affidavit from the driver indicated that he had been at a new friend’s house where he consumed some wine and some shrimp dip.  He fell ill and lay down in the spare bedroom and hours later decided to drive home as he felt lousy and did not wish to vomit in his friend’s house.  On the way home (a 10-minute drive) he felt ill, pulled over and threw up and a passerby stopped to check on his condition.  That passerby apparently called the police and left.  The police arrived within minutes.  There was no evidence of any vomiting referred to in the police report.  The driver indicated in his affidavit that he had vomited minutes before the police arrival and he was tired and sick and not drunk but merely had vomited because he consumed a bad shrimp dip not because of excess alcohol consumption.  Evidence was produced that the friend had left the shrimp dip (which contained mayonnaise) out in the sun earlier.  Forensic Nizar Shajani produced a written expert report advising that recent vomiting can make breath readings unreliable if the police do not wait at least 15 minutes from the last vomiting occurrence.  Decision: “I am not satisfied that the driver’s BAC readings were over 80 mgs”.   Driving prohibition revoked, no fine imposed, all towing and storage fees were eventually returned to the driver.  NOTE: It took the RSBC IRP adjudicator approximately 26 months to provide a written decision on this matter and no reason was given as to WHY it took so long.   (July 2016)

RSBC v. CLE – IRP ORAL APPEAL – SUCCESSFUL – MOUTH ALCOHOL DEFENCE — DRIVER FOLLOWED AFTER LEAVING PUB AND GIVEN ASD DEMAND AND FAILED THE ASC WITHIN 8 MINUTES OF LEAVING PUB – MOUTH ALCOHOL AFFECTED THE BRATH TEST MAKING IT UNRELIABLE

Facts:  On June 26, 2016 at about 11:00 pm the driver left the Cheers Pub in Chetwynd on foot with his friend and entered his vehicle and attempted to drive home.  Driver was followed from the Pub by the police.  Officer indicated in his sworn report that he stopped the vehicle at 11:02 pm several blocks later only after the vehicle had made several wide turns and because the vehicle had tinted side windows.   Officer advised that the driver told him that his last drink was “30 minutes ago” and Officer gave driver an ASD demand.  A breath sample was provided at 11:08 pm by the driver and the result was a “FAIL”.   The driver was then given the opportunity to call a lawyer which he did and he was provided with advice.  The driver requested a second breath test which the officer allowed but after a couple of breath attempts that did not produce any valid results on the ASD the officer took the ASD machine away and served the driver with a Notice of Driving Prohibition based upon the first FAIL result.  The driver hired Jamie Butler to fight the IRP.  Affidavit evidence was produced by the driver and his passenger that only 2 beers were consumed by each between 10:00pm and 11:00pm at the Pub.  The driver indicates his weight was 250 pounds.  The driver also indicated in his affidavit that he had the “last sip” of his second beer about 10 seconds before leaving the Pub at 11:00pm.  He disagreed with the officer’s version of his statement regarding his last drink.  He indicated that he told the officer that his last drinks was “within 30 minutes” not “30 minutes ago” as suggested by the police report.  The time of the first and only breath test was agreed to have been 11:08 pm.  An expert report from Forensic Analyst Nizar Shajani was produced as evidence. This expert report showed that the any breath sample taken with 15 minutes of a last drink could be unreliable.  Decision: “I am not satisfied that your BAC readings were at least 80 mgs even though the ASD registered a FAIL”.   Driving prohibition revoked, no fines imposed, all towing and storage fees paid by RSBC.   (July 2016)

RSBC v. PB – IRP WRITTEN APPEAL – SUCCESSFUL – DRIVER GIVEN 8 ATTEMPTS TO PROVIDE A VALID BREATH SAMPLE INTO AN ASD AFTER WHICH OFFICER DEEMED A REFUSAL OF ASD – DRIVER SUFFERED FROM GENERAL ANXIETY DISORDER CONFIRMED BY PHYSICIAN AND WAS SUFFERING FROM A PANIC ATTACK AND SHORTNESS OF BREATH AT TIME OF ASD TESTING – NO REFUSAL FOUND

Facts:   On March 27, 2014 at 1:50 am the driver was found to have swerved on the roadway and was pulled over by the police.  Officer noted a driver and passenger present in the vehicle with a smell of alcohol on the driver’s breath.  Driver denied consumption of alcohol.  Officer demands a sample of breath and provides driver with ample opportunity to provide a valid sample into an AS.  Officer filed a sworn report that failed to indicate the status messages produced by the ASD instrument after each attempt.   The officer’s sworn report indicated that the driver was attempting to defeat the ASD device by at times blowing around the mouthpiece and at other times while driver produced airflow it was not sufficient to engage the ASD to produce a valid reading.   Driver issued a Notice of Driving Prohibition for 90 days and files a written appeal.  Driver given 4 days to file her written submission.  Driver eventually hires Jamie Butler to fight the IRP driving prohibition as driver feels unable to prepare her own submission.  Within 2 days Jamie Butler accumulated evidence and produced a written submission for this appeal.  On this written IRP review there was a written report produced from the driver’s long time family physician which indicated that the driver has suffered a generalized anxiety disorder.  There was an Affidavit from the driver that indicated that she was called by her roommate to pick her up from a Pub as she was intoxicated and needed a ride home.  She did so and on the way home the roommate mistakenly leaned into the steering wheel causing the vehicle to swerve.  Driver indicated that she was only 96 pounds and suffers from extreme anxiety at times and upon being issued a demand for samples and having the officer scream at her she became fearful and suffered a panic attack and shortness of breath.  She indicated in her Affidavit that she “earnestly attempted to provide a breath sample on each of the 8 attempts”.  A report from a forensic expert was produced that indicated that people of slight frame and body weight who suffer from respiratory symptoms like shortness of breath from anxiety may not be able to successfully produce a proper breath sample.  Decision: “I am not satisfied that you refused or failed to comply with an ASD demand”.  Driving prohibition revoked, no fine imposed and all towing and storage fees paid for by RSBC.  (April 2016)

RSBC V. MCB – IRP APPEAL – SUCCESSFUL – MOUTH ALCOHOL DEFENCE — DRIVER STOPPED INITIALLY FOR SPEEDING AND POLICE SEE PARTIALLY CONSUMED BEER CAN IN VEHICLE CONSOLE AND INVESTIGATE FOR IMPAIRED DRIVING – DRIVER BLOWS “FAIL” ON ASD — DRIVER TESTIFIES HE CONSUMED ALCOHOL WHILE DRIVING BEFORE POLICE STOP AND WITHIN 7 MINUTES OF PROVIDING ASD SAMPLE — ADJUDICATOR FINDS ON APPEAL THAT DRIVER’S BLOOD ALCOHOL CONCENTRATION WAS LESS THAN 80 MG % — ASD FAIL CAUSED BY MOUTH ALCOHOL – PROHIBITION REVOKED

Facts:   On June 20^th at 23:38 hours MCB was stopped by the RCMP for speeding on a major highway in rural BC. Upon approaching the vehicle the officer noted an open beer can in the center console of the vehicle and changed the focus of his investigation to an impaired driving investigation. Officer noted the smell of alcohol on MCB’s breath, red and bloodshot eyes and that MCB exhibited slurred speech. Officer asked MCB when he last consumed alcohol and testified that MCB admitted to having 3 beers that last one “about 20 minutes ago”. Officer did not wait 15 minutes to allow for the dissipation of any alcohol from the driver’s mouth but instead obtained an ASD and thereafter a breath sample from the driver at 23:42 hour (only 4 minutes after the initial police stop). That ASD sample registered a “FAIL”. Driver served a 90 day driving prohibition. Driver hires Jamie Butler who provided on appeal MCB’s Affidavit regarding his version of the events that evening which included his having driven to a friend’s house, having consumed 2 beer early in the evening with a gap in consumption and with the majority of the last (third) beer being consumed by him right before he left friend’s house. The driver admitting to having consumed some of the last beer while on the highway back to his own house because he was thirsty, indicating that the last sip from the beer can was only 3 minutes prior to being stopped for speeding by the police.   An expert report from forensic toxicologist Nizar Shajani was also presented which showed that the consumption of 3 beer in the times suggested by the driver would not lead to a blood alcohol concentration of over 80 mg% in the driver. Mr. Shajani further indicated that an ASD can register a FALSE FAIL owing to recent consumption of an alcoholic beverage and a 15 minute waiting period from the time of the last consumption not being observed by the police officer to allow for the elimination of “mouth alcohol” from the subject driver’s mouth. An argument was presented on the IRP appeal that MCB’s blood alcohol concentration was never over 80 mg% and that the one ASD FAIL result occurred only because of “mouth alcohol” and was thus unreliable. On the IRP oral appeal the adjudicator found as follows: “Based on the evidence before me I am satisfied that you BAC was less than 80 mg%. “ Driving prohibition revoked, no fine imposed, all towing and impound were fees paid by the RSBC.   (July 2015)

RSBC v. BF — IRP APPEAL – SUCCESSFUL – SUPPLEMENTAL POLICE REPORT SUBMITTED BY THE POLICE WAS NOT PROPERLY “SWORN” BEFORE A COMMISISONER FOR TAKING OATHS IN BC — DUE TO IRREGULAR UNSWORN DOCUMENTATION BEING PRODUCED BY THE POLICE OFFICER TO SUBSTANTIATE THE DRIVING PROHIBITION THE ADJUDICATOR FINDING THAT THEY DID NOT HAVE SUFFICIENT EVIDENCE TO MAKE THE NECESSARY FINDINGS TO CONFIRM THE DRIVING PROHIBITION – PROHIBITION REVOKED

Facts:   On July 12, 2015 at just after midnight on a residential street in the Lower Mainland, BC the appellant, BF, was involved in a singular motor vehicle accident and moments later BF was found unconscious by another passing driver who saw the accident occur. The police and ambulance were called and when BF became conscious at the accident scene BF found that BF was being investigated by the RCMP for impaired driving. The police officer later filed a SWORN police report with RoadsafetyBC in support of an IRP driving prohibition for 90 days which indicated that a smell of alcohol was noted on BF’s breath who according to the officer denied having been the driver and then thereafter repeatedly lied to the police about the accident. The officer further indicated that an ASD demand was read to BF who subsequently blew “two insufficient samples prior to blowing a FAIL result”. Subsequent to the filing of his first report the same officer then felt the need to file a Supplemental report with RoadsafetyBC to explain a few more details about the incident. This second report incorporated the findings from the first SWORN report but this Supplemental Report was UNSWORN before a Commissioner for taking oaths in BC.   BF hired Jamie Butler to appeal the 90 day IRP driving prohibition which had resulted. Mr. Butler cited previous case law and in particular the case of SMV v. Murray, 2014 CanLIii 2417 (Supreme Court of Canada) which indicates that only a properly attested to and sworn report of the Police Officer can substantiate a 90 IRP driving prohibition and Mr. Butler argued that there was an irregularity in the process by having the adjudicator consider any UNSWORN report even if it incorporated the findings of what appeared to be a SWORN report. It was argued that there was thus no evidence properly before the adjudicator to substantiate any driving prohibition. Decision: “Having reviewed all of the evidence before me, I find that the Report to Superintendent is not properly before me. I find I have insufficient evidence to make the necessary findings required to confirm the prohibition.” Driving prohibition revoked, no fine imposed, all towing and impound were fees paid by the RSBC. (July 2015).

RSBC v. HG — IRP APPEAL – SUCCESSFUL – DRIVER ALLEGEDLY TURNED OFF ONTO A SIDE STREET TO AVOID A POLICE COUNTERATTACK ROADBLOCK – DRIVER STOPPED AND INVESTIGATED FOR IMPAIRED – DRIVER REPEATEDLY ADVISED THE OFFICER THAT HE HAD NOT CONSUMED ANY ALCOHOL THAT EVENING – OFFICER SMELLED A STRONG ODOUR OF LIQUOR COMING FROM THE DRIVER’S VEHICLE BUT WAS VAGUE ABOUT ALCOHOL EMANATING FROM DRIVER’S BREATH – 2 OTHER OCCUPANTS IN DRIVER’S VEHICLE HAD BEEN DRINKING ALCOHOL — DRIVER GIVEN ASD DEMAND BY OFFICER BUT LATER FAILED TO PROVIDE SUFFICIENT BREATH TO REGISTER A PROPER SAMPLE – ON APPEAL THERE WAS INSUFFICIENT EVIDENCE TO ESTABLISH A LAWFUL DEMAND WAS MADE AND THUS THERE WAS NO REFUSAL BY THE DRIVER  — PROHIBITION REVOKED

Facts:   At 2:50 am on July 5, 2015, driver HG turned off a major street in Vancouver and was later stopped by a police officer. Up ahead was a counterattack roadblock and the officer pulled HG over as a result of HG looking to be avoiding the roadblock. HG had two other occupants in his vehicle one of which advised the officer that the reason they had turned off the road was to double back to go to a McDonald’s drive-thru. The officer filed a police report that indicated that she smelled a “strong odour of alcohol coming from the driver’s vehicle”, that the driver had “red bloodshot eyes” and a “glazed blank expression”.   The police report indicated that the driver repeatedly denied consumption of any alcohol whatsoever that night. Despite this the officer read the driver an ASD demand and later produced an ASD for the driver to provide a breath sample. The driver failed on repeated occasions to provide sufficient breath samples into the ASD and the officer deemed a refusal and served a driving prohibition on the driver.   On the IRP oral appeal hearing HG’s lawyer, Jamie Butler, presented HG’s affidavit indicating that he did not drink any alcohol that night and provided statements from the other two occupants of HG’s vehicle verifying same. Mr. Butler then presented a very interesting and well-thought out legally framed argument which cited case law and relevant legislation.   This argument did not FIT within any of the prescribed “GROUNDS FOR REVIEWS” suggested on the tick-box form provided by RoadsafetyBC in the application for review process. Essentially the argument presented suggested that the relevant provisions of the Motor Vehicle Act governing IRP driving prohibitions incorporates the Criminal Code requirement of an officer having to possess a “reasonable suspicion” that a driver has alcohol in his body BEFORE that officer can issue a LEGAL demand for breath samples from that driver.   Given that the driver HG denied consumption of alcohol it was argued that the smell of alcohol coming from the vehicle (where there were two others present who had been consuming alcohol) did not give rise to sufficient objective grounds for the officer to make a LEGAL demand for samples from HG. It was argued that officer did not have sufficient grounds to make a legal demand for a breath sample from HG and thus HG was entitled to refuse to provide a sample.   Decision:   “The issue of whether you failed or refused to comply with a demand is twofold. First, the evidence must establish that an officer made a lawful demand on you to provide a sample of your breath. Second, the evidence must establish that you failed or refused to comply with the demand.   In reviewing the police documents before me I find that Officer Meadwell has failed to provide evidence sufficient to establish that she made a lawful demand on you on July 5, 2015.”   Driving prohibition revoked, no fines imposed, towing and storage fees paid by the RSBC. (July 2015).

RSBC v. JXW – IRP APPEAL – SUCCESSFUL – FAILURE TO PROVIDE SAMPLE INTO ASD – INSTRUCTIONS ON HOW TO BLOW INTO ASD “LOST IN TRANSLATION” — DRIVER INTERCEPTED BY POLICE AFTER STOPPING ON ROADWAY – DRIVER SPEAKS PRIMARILY DIALECT OF MANDARIN FROM THE NORTH-EASTERN PART OF CHINA —  SECOND POLICE UNIT CALLED TO THE SCENE — DRIVER READ ASD DEMAND AND EXPLAINED ASD SAMPLING PROCESS BY SECOND OFFICER WHO SPOKE DIFFERENT DIALECT OF MANDARIN THAN JXW — DRIVER DID NOT UNDERSTAND DEMAND OR BREATH SAMPLING INSTRUCTIONS – PROHIBITION REVOKED

Facts: On April 21, 2015 at 23:03 hours in Richmond, BC, driver JXW, realizing that he had left his cel phone in his friend’s car, abruptly stopped and exited his car on a major road so that JXW could obtain his cel phone from his friend who was ahead on JXW in traffic.   Police officers who were, by chance, on foot in this area stopped to investigate as the circumstances looked awkward. Officer Roberts noted JXW had glassy squinty eyes, difficulty keeping his eyes open, illegible speech, dry mouth, kept moving his tongue around his mouth and an odour of liquor on his breath.   On noting that JXW only spoke only Mandarin, Officer Roberts called for a second Mandarin speaking officer to attend the scene to read an ASD demand to the driver and thereafter take samples from JXW. Officer Chan thereafter arrived on scene and according to the police report filed (in support of the IRP driving prohibition) by Officer Roberts, Officer Chan read to JXW a legal breath demand, explained and demonstrated to JXW how to provide a proper breath sample and later informed JXW what the consequences of failing or refusing to provide a proper sample would be. Despite all of this according to the police report filed by Officer Roberts, apparently JXW only gave “short puffs of air and appeared to be exaggerating in having difficulty with providing a sample”.   JXW was provided an IRP driving prohibition for failing to provide a proper sample.   JXW hired lawyer Jamie Butler and appealed the IRP driving prohibition. On appeal Jamie Butler provided an affidavit from JXW which had been translated by a certified translator. In that affidavit JXW indicated that he primarily spoke Mandarin but the dialect of Mandarin that he spoke was from the North-Eastern part of China (as he was originally from Liaoning Province, in China). He further indicated that he had difficulty understanding Cst. Chan who spoke a different southern-based and more conventional Mandarin. As such he had difficulty understanding the ASD demand, the repercussion for refusal being explained to him and in following the directions and demonstrations presented to him by Cst. Chan with respect to the provision of proper breath samples. At the oral IRP review there was also some expert evidence presented surrounding the difference in various Mandarin dialects. It was argued by Jamie Butler that the whole situation was in effect “lost in translation” on JXW and that JXW did not fail to comply with any ASD demand. It was thus argued that not all Mandarin can be understood by those who speak Mandarin.    Decision: “There are three matters for me to determine in this issue. I must determine whether the peace officer made a valid demand, whether you failed or refused to comply with that demand and whether you intended to produce that failure or refusal.   I am not satisfied you failed to comply with the demand.”    Driving prohibition revoked, no fines imposed, towing and storage fees paid by the RSBC. (May 2015).

RSBC v. DC — IRP APPEAL – SUCCESSFUL —   NOT A “DRIVER” WITHIN THE MEANING OF THE PROVISIONS OF MOTOR VEHICLE ACT AS THEY RELATE TO IRP DRIVING PROHIBITIONS — EVIDENCE OF MVA WITH TWO PEOPLE INSIDE THE VEHICLE AT THE TIME OF THE MVA — DC WAS THE REGISTERED OWNER OF A VEHICLE INVOLVED IN THE MVA AND IT WAS SUCCESSFULLY ARGUED THAT DC WAS ONLY MISTAKENLY IDENTIFIED AS THE “DRIVER” AS THE SECOND OCCUPANT HAD FLED THE SCENE UPON POLICE ARRIVAL – PROHIBITION REVOKED

Facts: On a date in March 2015 DC was in his pick-up with another occupant returning from a day of biking and dinner at the golf club with a couple friends.  While in a fairly remote suburban neighbourhood DC’s pickup failed to negotiate a sharp turn and went off the road and into a rock beside a forested area. The vehicle was heard to be “revving’ by a nearby neighbor. That neighbor resident came out to the accident scene and much later still he saw DC exit from the driver’s side of the pickup.   The resident saw DC walk over to behind a tree and use a cel phone. The resident called 911 and provided a description to the dispatcher. Fire and ambulance were first to arrive and the police arrived 5 minutes after the resident called them. When the police arrived the scene was described as “very chaotic” as an “angry crowd of 6 – 10 people” had congregated and needed to be contained. The investigating police officer, Cst. Moxness had information that the “passenger fled the scene” prior to their arrival.   He stated in his sworn report that DC, who had remained at the scene, smelled strongly of alcohol, was VERY repetitive in his speech, could not stand straight unassisted and subsequently vomited on himself.   The officer read an ASD demand to DC and in his filed sworn evidence Cst. Moxness said DC: “… was extremely belligerent with police, he purposefully fell out of the police car and stated “fuck you, I’m not blowing in anything you dick … he subsequently stated “fuck you I’m not sucking anything.” After being explained the consequences of refusing a breath sample DC “… still refused stating “fuck you, I’m not blowing into anything.” DC was issued an IRP driving prohibition for refusing to provide a breath sample. DC hired Jamie Butler to aid in his IRP appeal.   On the IRP appeal Jamie Butler provided DC’s version of events regarding the evening in a sworn Affidavit. (No Affidavit was presented from the other occupant (who was described as the “passenger that fled the scene” in the police report)). DC’s Affidavit indicated that he had been biking and then had dinner with friends. He drank only a moderate amount of beer but then started feeling sick from some creek water that he had drank on his earlier bike trip. After dinner DC had his friend, Mr. P, drive his vehicle home for him.   DC explained that he started to vomit (from beaver fever) on the way home and opened the passenger door to vomit outside. Mr. P was startled by this action and as a result the pickup jumped the curb and crashed. Mr. P then tried to extricate the vehicle from where it had got stuck on a rock but failed to do so. DC explained that he tried to phone his wife to pick him up and when the police sirens became evidence Mr. P left the scene as he “got nervous” as he had previous driving violations and because he had been drinking and driving.   He explained that the resident only saw him opening the driver’s side door to the disabled pickup as he was trying to get his bike out the back compartment because it was expensive and he did not want to leave it in a disabled pickup over night.   He admitted to being belligerent with the police but only after the police were disrespectful of him and after they pushed him down into the police vehicle when he attempted to get out. It was argued on appeal that DC had not been the driver of the pickup truck when it went off the road and nor was he in care and control when the resident saw him exiting the said vehicle. It was further argued that if DC was not the driver then he had no legal obligation to provide any breath samples to the police. Decision: “I am satisfied that you were not a driver within the meaning of section 215.41(1) of the Act”.    Driving prohibition revoked, no fines imposed, towing and storage fees paid by the RSBC. (April 2015).

RSBC v. BF  — IRP APPEAL – SUCCESSFUL – MOUTH ALCOHOL AFFECT – ASD READINGS NOT REALIABLE — AFFIDAVIT AND OTHER EVIDENCE SHOWING DRIVER ONLY CONSUMING TWO GLASSES OF WINE IN TOTAL THAT EVENING — TWO BREATH SAMPLES WERE TAKEN — THE FIRST WAS 11 MINUTES AFTER LAST CONSUMPTION OF WINE AND THE SECOND WAS 17 MINUTES AFTER LAST CONSUMPTION OF WINE – BOTH ASD TESTS WERE OF QUESTIONABLE RELIABILITY BECAUSE OF POSSIBLE CONTAMINATION BY “MOUTH ALCOHOL” PRODUCING FALSE FAIL RESULTS ON THE ASDs – DRIVER’S ACTUAL BAC READINGS FOUND ON APPEAL TO BE UNDER 80 MGS% — IRP DRIVING PROHIBITION REVOKED

Facts:   In the 22:52 hours of February 25^th BF was stopped by the police for speeding on a major thoroughfare in a Lower Mainland suburb. The police officer noted a smell of alcohol on BF’s breath and upon questioning BF the police officer indicated in his report that BF explained having previously consumed one glass of wine thirty minutes previous. BF was read the ASD demand and later provided two samples of breath into two separate ASDs registering FAIL readings on both at 22:57 and 23:03. BF served a Notice of Driving Prohibition and BF’s vehicle towed and impounded. BF appeals and hires lawyer Jamie Butler. BF provided Affidavit evidence showing that BF had met a friend at a restaurant for dinner where she had consumed one glass of wine and had left there at 22:05.   BF indicated that BF had then attended a nearby Pub were BF had met a work associate and had a second glass of wine between 22:10 and 22:46.   The security video of the Pub established that BF had indeed left the Pub at 22:46. There was a receipt for one glass of wine from the Pub which was marked in evidence at the IRP oral appeal. BF was stopped by police at 22:52 (6 minutes after leaving Pub).   BF’s first FAIL reading on the ASD was 11 minutes after BF’s last sip of wine and BF’s second FAIL reading on the ASD was 17 minutes after BF’s last sip of wine.   An expert forensic report was obtained from Nizar Shajani, forensic analyst, showing that at least that the first ASD test could have been contaminated by “mouth alcohol” as the wine was last consumed within 15 minutes of that ASD test. Shajani’s report put BF’s hypothetical BAC readings at below 80 mgs at both testing time(s).   On the oral IRP appeal it was argued that at the very least the first ASD FAIL result was not reliable owing to the possibility of being contaminated by “mouth alcohol” from the last glass of wine. It was further argued that the provisions of the Motor Vehicle Act indicate that a driver is entitled to have at least two valid and reliable ASD tests with the lower of the two results prevailing in terms of the penalties to be provided to the driver via the legislative regime. Decision: “After reviewing the evidence before me, I am satisfied that your BAC (blood alcohol concentration) was less than 80 mgs%.” Driving prohibition revoked, no fine imposed, car released and all towing and impound were fees paid by the RSBC.   (March 2015).

RSBC v. BS — REFUSAL OF ASD — IRP ORAL APPEAL – SUCCESSFUL – DRIVER SEEN LEAVING A PUB PARKING LOT – DRIVER STOPPED AND NOTED BY POLICE TO HAVE SMELL OF ALCOHOL ON BREATH AND GIVEN ASD DEMAND – DRIVER ATTEMPTS TO PROVIDE SAMPLES ON SEVEN OCCASIONS – OFFICER DEEMS REFUSAL – DRIVER HAD PREVIOUSLY CONSUMED ROBITUSSEN DM COUGH MEDICINE ACCOUNTING FOR SMELL OF ALCOHOL – DRIVER HAD SEVERE CONGESTION OWING TO TERRIBLE FLU – DRIVER FOUND ON IRP TO NOT HAVING FAILED OR REFUSED TO COMPLY WITH A VALID ASD DEMAND – PROHIBITION REVOKED

Facts:   On February 20^th BS had worked until 3:00pm and joined a work associate for ONE beer at that time and then went home. BS was suffering from the latent effects of an earlier bad flu that had previously kept him off work for 5 days. Symptoms on February 20^th included some congestion with some respiratory symptoms for which he was taking ROBUTISSEN DM cough medicine. A friend (PD) had arrived at BS’s home much later. At 11:00pm BC agreed to drive and drop off his friend PD at a nearby Pub to meet others (BS was to return home to sleep). At 11:30 pm while dropping of PD at the Pub BS seen leaving the Pub parking lot by police officer and stopped for having a “defective license plate light”.   Officer noted the smell of alcohol on BS’s breath but no other symptoms of previous alcohol consumption.   Officer made ASD demand and thereafter BS attempted to provide breath samples on 7 separate occasions. Officer accuses BS of “faking” attempts in order to defeat the ASD.   Officer notes in his written report that BS provided no physical reasons for not being able to provide samples. Officer deems a refusal. BS hires lawyer Jamie Butler to fight the IRP appeal.   On appeal BS provides an Affidavit advising of his medical condition on February 20^th (which conflicts with the noted lack of physical reasons for not being able to provide samples outlined by the police report) and provides internet search of Robitussen DM cough medicine showing that it contains “alcohol” as an ingredient (thereby accounting for the smell of alcohol on his breath). BS indicates in his Affidavit that he was attempting to provide a sample on each occasion but he could not provide enough air. Expert Report from Nizar Shajani, forensic ASD specialist, produced on appeal showing that NOT everyone can provide enough air for an ASD especially those experiencing bronchitis or severe respiratory symptoms.   It was argued on irp appeal that BS was not attempting to defeat the ASD test and had a respiratory illness that prevented him from providing samples into the ASD.   Though there were other issues raised on the appeal the adjudicator found: “I will focus on the one key issue. Based upon the evidence before me, I am not satisfied that you failed or refused to comply with an ASD demand”. Driving prohibition revoked, no fine imposed, all towing and impound were fees paid by the RSBC.   (March 2015)

RSBC V. CL – IRP APPEAL – SUCCESSFUL – OCCUPANT/DRIVER OF TRANSPORT TRUCK MISSED DEER WENT OFF ROAD ON MAJOR HIGHWAY AND DRINKS ALCOHOL AWAITING ARRIVAL OF TOW TRUCK FOR HELP – VEHICLE INOPERABLE AFTER MVA — EHS ATTEND – OCCUPANT/DRIVER FOUND IN FIRETRUCK AT TIME OF POLICE ARRIVAL HOURS AFTER MVA – PROVIDES TWO FAIL SAMPLES ON ASD — FOUND ON APPEAL TO NOT BE A “DRIVER” WITHIN THE STRICT MEANING OF MOTOR VEHICLE ACT – PROHIBITION REVOKED

Facts:   On February 17^th CL set out in transport truck for a western Province from Lower Mainland, BC and somewhere near the Alberta border a deer jumped out in the roadway and CL swerved to miss the deer and in the process the transport truck veered off the road and in the process blew a tire. CL radioed other truck drivers for help. In the interim as weather was below freezing Celcius CL climbed into the sleeping compartment of his truck and drank some “Slivovitch” (plum brandy) that he had brought with him as a gift for someone else. Later an unnamed witness stopped and agreed to call for help at the next town. Witness advised police that CL had been drinking alcohol. According to CL it was more than 3 hours after the mva that a fire truck with paramedic showed up (the precise timing of the mva was not mentioned in the police report). CL was being checked over by the paramedic when 5 minutes later the police showed up on scene. Officer noted odour of alcohol and driver advised the officer that he had been consuming some alcohol hours earlier. Officer read ASD demand and CL provided to FAIL samples of two separate ASD units.   CL hired lawyer Jamie Butler who provided on appeal CL’s Affidavit regarding his version of the accident and what had occurred before and after the mva. The Affidavit conflicted with the police officers written report on a number of points. Argument was presented on the IRP appeal that CL was not a “driver” within the meaning of the Motor Vehicle Act as too much time had passed since the mva and that CL had consumed alcohol only AFTER the mva. On the IRP oral appeal the adjudicator found as follows: “Having reviewed all of the evidence before me … I am satisfied that you were NOT a driver within the meaning of section 215.41(1) of the [Motor Vehicle] Act.” Driving prohibition revoked, no fine imposed, all towing and impound were fees paid by the RSBC.   (March 2015)

RSBC v. KB — IRP APPEAL – SUCCESSFUL – DRIVER HAD MVA LATER BLEW ‘FAIL’ ON ASD — POLICE SUBMITTED WRITTEN REPORTS THAT INDICATED THE APPELLANT PROVIDED 3 SAMPLES INTO THE ASD THAT ALLEGEDLY DISPLAYED “NO GO” READINGS THEN A “FAIL” AFTER THE 4^TH ATTEMPT – THE CALIBRATION DATE ON THE ASD UNIT UTILIZED BY THE POLICE WAS FOUND TO BE OVEREXTENDED BY 15 HOURS — THE WRITTEN POLICE REPORT SUBMITTED MISDESCRIBED THE MANNER IN WHICH A PROPERLY FUNCTIONING ASD SHOULD HAVE INDEED FUNCTIONED PRIOR TO THE SUBJECT’S ALLEGED “FAIL” RESULT – ASD TEST FOUND ON APPEAL TO BE UNRELIABLE — PROHIBITION REVOKED

Facts:   In the early afternoon on January 22, 2015 on a major street in suburban BC the appellant, KB, was involved in a motor vehicle accident when KB’s vehicle had struck a road marker on the side of the road and subsequently reversed into another vehicle. The police attended and KB was noted to be bleeding from the lip and nose area.   The police officer filed a report that indicated that KB had glossy eyes, slurred speech, was crying and somewhat hysterical at times and was very unsteady on her feet. KB allegedly admitted to feeling depressed and to have previously consumed alcohol. EHS attended and KB was taken to the hospital by ambulance. Police followed. At the hospital the police officer made a legal demand for a breath sample from KB and the police officer conducted 3 separate breath tests using his Alco-sensor-IV DWF Approved Screening Device. The officer indicated in his report that each of these tests resulted in a “NO GO” being displayed on the ASD digital display, which indicated to the officer that KB was attempting to defeat the ASD by not providing enough air into it.   After receiving a verbal warning from the officer, KB allegedly produced a fourth breath sample into the same ASD that allegedly resulted in a “FAIL” result on the ASD digital display unit. KB was issued an IRP driving prohibition which was appealed with the help of lawyer Jamie Butler. The disclosure that came after the appeal was launched indicated that the ASD that was being used at the time had been last calibrated by the Qualified ASD Technician 29 days prior to being utilized by the officer on KB and that the ASD Calibration Expiry Date was on midnight of January 21 (or about 15 hours prior to its use with KB).   On the oral IRP appeal it was argued that the ASD result was not reliable owing to the fact that the ASD used by the officer might not have been working properly because: (a) the ASD had not been calibrated in accordance with recognized guidelines (within the required 28 days previous to its use); and (b) a properly working ASD could not have possibly had 3 test in a row that read “NO GO” (in that if insufficient air was produced on the 3^rd test it should have read “VOID” and not “NO GO”).   Decision: “Having reviewed the evidence before me, I find there is one issue that is determinative of this review.   After considering the evidence before me, I am not satisfied the ASD was reliable.” Driving prohibition revoked, no fine imposed, all towing and impound were fees paid by the RSBC.   (February 2015).

RSBC v. MAK — IRP APPEAL – SUCCESSFUL – DRIVER FOUND ASLEEP IN CAR BY AMBULANCE DRIVER WHILE PARKED ILLEGALLY ON ROADWAY NEAR HOSPITAL – DRIVER PRODUCES ASD FAILS ON TWO SEPARATE ASD TESTS – ON APPEAL DRIVER FOUND TO BE NOT IN “CARE AND CONTROL” OF VEHICLE OR A “DRIVER” WITHIN THE LEGAL MEANING OF THE LEGISLATION — PROHIBITION REVOKED

Facts:   At 3:12 am on December 4, 2014, an ambulance driver (EHS) noticed the driver, MAK, asleep in his car stopped “southbound facing a stop sign” at a major intersection with the engine running. Police were alerted and attend moments later finding MAK asleep at the wheel. MAK was alleged to have slurred speech, strong odour of liquor on his breath, red and hazed, and could not spell his name correctly (3x) when requested by the police. When asked he said he last drink was at “7:00 pm”. Police demand a breath sample of MAK who provides two “FAIL” RESULTS of two different ASDs.   MAK is served with an IRP driving prohibition.   MAK appeals his IRP with the help of counsel. At the IRP oral appeal MAK files an Affidavit wherein he swears that he had parked at a spot directly across the hospital in an illegal parking spot.   The intersection was described as a quiet T-intersection so that vehicles could only turn right from the stop sign.   MAK swears he was visiting his ailing mother at the hospital, left her at the hospital at 11:00pm, walked over and ate at a nearby bar/restaurant where he consumed 2 pints of beer before returning to visit his ailing mother after 12:30 am. As his mother was in perilous condition he decided to stay at the hospital just in case things got worse. As he could not find anywhere comfortable to sleep he re-attended his vehicle, turned the ignition on so that the heater could be engaged, put his seat back and used his jacket as a makeshift blanket. He slept in the illegally parked vehicle with the intention of checking on his mother’s condition and being with her in the morning if she made it through the night.   He was awakened by the police and indicated in his Affidavit that he advised them he was not planning on driving anywhere. He disputed that he told the officer that he last drank at 7:00pm contesting that he said “11:00pm” and that the officer made a mistake. ON the IRP oral appeal hearing MAK’s lawyer, Jamie Butler, argued that though MAK was legally drunk and the ASD results were accurate, that MAK had no intention of driving anywhere while he was under the influence of alcohol and was using his vehicle simply as a sleeping vessel.  It was argued that he was not a “driver” as he was not in “care and control” of the vehicle. Caselaw regarding the legal issue of “care and control” was presented at the IRP oral appeal. The adjudicator agreed.  Decision:   “Having considered the evidence before me, I am not satisfied that you were a driver within the meaning of section 215.41(1) of the Motor Vehicle Act”. Driving prohibition revoked, no fines imposed, towing and storage fees paid by the RSBC. (December 2014).

RSBC v. SB — IRP APPEAL – SUCCESSFUL – POLICE INDICATING SUBJECT’S ROADSIDE ASD TEST RESULTED IN A “FAIL” READING AND SERVED SUBJECT WITH A PROHIBITION — ON THE IRP APPEAL POLICE SUBMITTED WRITTEN REPORTS THAT SHOWED SEVERAL ATTEMPTS WERE MADE BY THE SUBJECT PRIOR TO THE SUBJECT’S ALLEGED “FAIL” RESULT WITH THE ASD MACHINE DISPLAYING VARIOUS L.E.D. STATUS MESSAGES ON THE UNIT – AT THE IRP APPEAL DRIVER SUBMITTED A WRITTEN FORENSIC TOXICOLOGIST REPORT THAT INDICATED THE WRITTEN POLICE REPORTS SUBMITTED MISDESCRIBED THE MANNER IN WHICH A PROPERLY FUNCTIONING ASD SHOULD HAVE INDEED FUNCTIONED PRIOR TO THE SUBJECT’S ALLEGED “FAIL” RESULT – ASD TEST FOUND ON APPEAL TO BE UNRELIABLE — PROHIBITION REVOKED

Facts:   Just past 2:50am on December 6, 2014 the police stop the driver, SB, on Highway 91 in Richmond for speeding. SB had forgotten to renew his driver’s license and it was expired. Officer therefore served the speeding ticket upon SB and indicated to the driver that the vehicle would have to be towed. SB protested and attempted to get friend to pick up the car to save the towing fees. Police then noted symptoms of impairment (odour of alcohol on SB’s breath, speech hoarse and SB had untidy appearance). The officer made a demand for ASD sample and SB thereafter made NINE attempts to provide a valid sample and then allegedly blew a “FAIL” on the ninth attempt. The officer submitted a written report that indicated/inferred that he changed or re-inserted the mouthpiece of the ASD only after the fourth and eighth breath attempts and his report indicated that the ASD would read various L.E.D. status messages such as “NO GO” and “VOID” during these various attempted tests. The officer (inadvertently) mis-described in his written report how a properly functioning ASD unit should have indeed operated. On the IRP APPEAL SB’s lawyer submitted an affidavit from SB indicating both what he in providing breath sample and also describing what actions the officer took with the ASD unit during the testing prior to the “FAIL” result being achieved. Importantly on the appeal SB’s lawyer also submitted a forensic toxicologist’s report from Nizar Shajani which indicated that the type of ASD machine used could not have been functioning properly if indeed it had functioned as the officer’s written report had indicated. In particular the ASD could not have continued to be ready to accept as sample on the fourth and eighth attempts (as described by the officer in his report) if indeed the ASD unit had displayed 2 NO GO status messages followed by a VOID status messages prior to the fourth and eight tests. The irresistible inference from the totality of the evidence was that the ASD’s operability was suspect during the first eight tests and thus the final ninth test (the one that read a “FAIL” reading) might also be suspect.  It was argued on appeal that the first ASD test was not reliable as a reliable ASD unit would not have operated in the manner described by the written police report submitted to RSBC by the police.   Decision: “Having reviewed the evidence before me, I find there is one issue that is determinative of this review.   I am satisfied that the ASD used to administer the first ASD test was not reliable”. Driving prohibition revoked, no fine imposed, all towing and impound were fees paid by the RSBC.   (December 2014)

RSBC v. BM — IRP APPEAL – SUCCESSFUL – REFUSAL OF ASD – POLICE INDICATED DRIVER PRETENDING TO BLOW THREE TIMES AND DEEMED REFUSAL – CONFLICTING POLICE EVIDENCE IN EXACTLY WHAT STATUS MESSAGE DIGITALLY APPEARED ON APPROVED SCREENING DEVICE READ-OUT DURING ATTEMPTS — DRIVER INDICATED HE MADE EARNEST ATTEMPTS TO PROVIDE BREATH SAMPLES – NO FAILURE OR REFUSAL TO COMPLY WITH DEMAND — PROHIBITION REVOKED

Facts:   Just past 8:00pm the driver, BM and his admittedly drunk passenger were stopped by the police officer, Cst. S., after BM’s vehicle made a suddenly swerve over the line and then swerved back without signaling. An odour of liquor and cardamon was determined to come from BM, who was also observed to stumble out of his vehicle. BM indicated to the officer he had one drink at 10:00am. A demand was made for breath samples into an ASD. BM’s passenger was drunk and obnoxious towards Cst. S. who called for back-up which arrived within 2 minutes. Allegedly the backup police officers saw everything that happened during the breath sampling. Cst. S and the other 2 officers wrote reports that indicated that BM was merely pretending to blow, puffing his cheeks and not providing ANY air into the ASD. Cst. S. indicated that the ASD device digitally read “NO GO” on the first two samples. One of the back-up officers indicated that BM was pretending to blow and the ASD did NOT read “NO GO”. Cst. S. advised BM that pretending to blow would be a refusal and allowed BM one further attempt which he deemed to be a “pretend blow” and he therefore deemed a refusal.   At the IRP oral appeal hearing BM presented an affidavit showing that he had a flu and drank a Hindi flu remedy (which had alcohol in it) at 10:00am. BM further indicated that his passenger was extremely drunk and it was his passenger that pulled the steering wheel causing the “swerve” noticed by Cst. S. BM indicated that he was eating cardamom all day to settle his stomach and did not smell of alcohol. BM indicated that he was earnestly attempting to provide breath samples on all three occasions. BM indicated that Cst. S. did not provide him with proper guidance or instructions on how to blow in the ASD at any time and that he had never blown into an ASD BEFORE. An ASD forensic expert report from Nizar Shajani was produced on the IRP appeal. Mr. Shajani who is an expert in the use and operation of ASD device used by Cst. S. (the Alco-sensor IV DWF) indicated that it was impossible for the ASD to have produced a “NO GO” reading (as Cst S. suggested) unless SOME air was being introduced into the ASD. This refuted Cst. S’s evidence that NO AIR was introduced into the ASD and had the effect of making Cst. S look to be either mistaken or not credible about his operation of the ASD device he used with BM. Counsel Jamie Butler, argued that Cst. S’s evidence was wrong or mistaken and that valid attempts were made by BM on each occasion  Decision: “When considering all of the evidence before me, I find that you did not fail or refuse to comply with the demand”. Driving prohibition revoked, no fine imposed, all towing and impound were fees paid by the RSBC.   (November 2014)

RSBC v. ST — IRP APPEAL – SUCCESSFUL – MOUTH ALCOHOL FROM FRESHLY CONSUMED WINE STILL PREVALENT DURING ASD TESTING AND AFFECTING ASD TESTS — ASD TESTS ACHIEVED WERE NOT A RELIABLE INDICATOR OF ACTUAL BAC BECAUSE THEY WERE PERFORMED WITHIN 15 MINUTES AFTER THE DRIVER HAD CONSUMED WINE – — PROHIBITION REVOKED

Facts:   At 7:12 p.m. police officers were conducting a police counter-attack roadblock on a roadway just off Highway #99 in Squamish. The officer witnessed the driver, ST, drive up alone to the roadblock and smelled alcohol from his breath. When questioned the officer indicated in his filed report that ST said that he had “last drank an hour ago”. A legal demand for breath samples was made at the roadside and the driver provided two samples of breath into two separate ASDs with FAIL results on both tests at 7:12 p.m. and 7:15 p.m..   On the IRP oral review the driver testified in an Affidavit that he had been working in the Lower Mainland for most of the day and came home at about 5:00 p.m. He produced a phone record log to show that he had made and received many calls during the day, several of which were to/from his common law girlfriend (DD) who was attending a friend’s birthday party. Between 6:05 p.m. and 7:04 p.m. he made dinner and opened a bottle of wine in another party’s (AB’s) presence and he and AB both had ONE glass of wine from that bottle. DD had phoned ST during his dinner (at 6:41p.m.) to request a ride home from the birthday party and ST agreed to pick her up. When ST finished dinner he drank that last sip of wine from his glass and headed out the door at 7:04 p.m..   Evidence was presented at the IRP oral hearing that the drive from ST’s home to the police roadblock would take 8 minutes. Contrary to the police report, ST testified in his Affidavit that he had told the officer at the roadblock that he had “poured his last drink about an hour ago”. An expert report from Nizar Shajani, forensic toxicologist was submitted showing that ST’s likely BAC would have been within the legal limit but and that FALSE FAIL results could have been achieved by the two separate ASD units used owing to “mouth alcohol” from the wine which was last consumed about 11 minutes from the second FAIL breath sample. Corroborative evidence was presented at the IRP oral hearing from AB and DD in statement form. Decision:   “After reviewing all of the evidence before me I am satisfied that your BAC (blood alcohol content) was less than 80 mg% even though the ASD registered a FAIL.” Driving prohibition revoked, no fines imposed, towing and storage fees paid by the RSBC. (November 2014).

Facts: Just past midnight the driver, KS and her admittedly drunk passenger were stopped at a police sobriety check roadblock. An odour of liquor was determined to come from the driver who was polite but (initially) evasive. KS first denied consumption and later admitted to having consumed some liquor a couple hours earlier. A legal demand was made for breath samples into an ASD. Thereafter there was 8 minutes or interaction between KS and the police officer before the police determined a refusal. The police officer indicated in his report that during this time KS “would place her lips on the device, make a tight seal on the mouth piece and then make it appear that she was blowing” but did not provide enough air into the ASD to produce readings. The police officer indicated that KS was instructed numerous times how to provide a proper sample but would only blow faintly on repeated occasions. He indicated that the driver KS advised him that “she had asthma, however she was not short of breath and able to carry on a normal conversation”. The officer’s report suggested that the driver was pretending to have asthma and using this as an excuse and feigning her attempts to blow. The officer therefore indicated that she had “unequivocally refused” to provide a sample. KS provided an Affidavit on the IRP appeal wherein she indicated that she had suffered from an anxiety disorder for years, was stressed by the officer yelling at her and mocking her and became anxious. For weeks prior she had been suffering from the flu where the symptoms were respiratory causing some shortness of breath. She was under medical investigation (being assessed but not yet diagnosed) for an asthma-like condition as a result of this longstanding flu. On her very last (third) attempt to provide samples she was sobbing and anxious and when the officer put the ASD up to her mouth she was, as a result, exhaling and could not catch her breath. The officer deemed a refusal at that time. At the IRP appeal an KS’s Affidavit, a statement from her drunk passenger, a statement from a Registered Respiratory Therapist Counsel, and a ASD forensic expert report from Nizar Shajani were all produced. Mr. Shajani’s report indicated that “people suffering from respiratory conditions (such as asthmatics) can have difficulty in supplying a valid test” into an ASD. Counsel Jamie Butler, argued that though there was evidence that the driver had previously consumed some alcohol there was “no refusal” in these unique circumstances and that a combination of “anxiety and an asthma-like condition” prevented proper samples from being taken. An additional argument was developed that KS did not refuse on the last attempt but was merely sobbing, crying, exhaling and physically out of breath.
Decision: “When considering the evidence before me, I find that you did not fail or refuse to comply with the demand” Driving prohibition revoked, no fine imposed, all towing and impound were fees paid by the RSBC. (October 2014)

Facts: At 2:32am an officer observed MPS (who was known to him) accelerate from a stop sign “in a manner that appeared to [the officer] that the vehicle was trying to exceed the speed limit over a short distance”, the driver then slowed down when he “saw” the officer. The office stopped the vehicle, which had 5 people in it, as he thought the driver had a class 7 driver’s license restricting the number of passengers. The officer was wrong as the driver now had his class 5. Nevertheless the officer noted an open 12-pack of Twisted Tea (alcoholic beverage) in the back of the vehicle. One of the female passengers was drinking a Twisted Tea in the back seat. The driver was noted to have “red and glassy eyes”, “his face had lost muscle tone and would droop”, he was “increasingly methodical in his movements and speech” and had the “the smell of liquor on his breath”. The driver admitted to having consumed only “one beer three hours prior”. The officer, recognizing the driver from past dealings, demanded breath samples from him. The first sample registered a “FAIL” on the ASD at 2:42am. The driver protested as he then admitted that he had only consumed two beverages in total (one beer and one Twisted Tea). The driver pushed for a second test. A second test was performed on an ASD and again a second “FAIL” resulted. The driver was issued an IRP and the vehicle was towed. At the IRP appeal hearing the driver and the four passengers all provided written accounts/statements indicating that the officer used the EXACT SAME APPRIVE SCREENING DEVICE (ASD) for each ASD test and did not perform the two separate breath tests on TWO DIFFERENT ASDs as is required by law. The officer indicated in his sworn statement that he used two different ASDs but had the same serial numbers indicated for each device. He had, however, crossed out the serial number of one of the devices in his report and had replaced it with a different second serial number. It was alleged at the IRP oral appeal hearing that the officer falsified his report and changed the serial numbers on his report when he recognized his mistake. Decision: “Having reviewed the evidence before me, I find the officer did not provide you with two different ASD tests on TWO different ASDs”. Driving prohibition revoked, no fine imposed, all towing and impound were fees paid by the SMV. (October 2014)

Facts: At 3:17 am a police officer observed the driver, LT, drive up to the police roadblock on the Grandview onramp of Highway#1. The police officer requested roadside samples of LT on an approved screening device (ASD). Two minutes after being stopped (at 3:19am) the driver performed a test on an ASD and the result was a “FAIL”. The officer decided to take the driver to the police station for further sampling and possible criminal charges. Two breath samples were taken by a Qualified Breath Technician at the police detachment using a more advanced testing device called an Intox EC/IR II. Those tests were taken at 5:00am and 5:44am and the blood alcohol readings were 120 milligrams of alcohol in 100 millilitres of blood and 110 milligram of alcohol in 100 millilitres of blood. (The legal limit is “under 80 milligrams of alcohol in 100 millilitres of blood”). The police report filed indicated that the driver was observed as “vomiting” and further that the “Driver was vomiting during observation periods”. At the IRP oral appeal hearing an Affidavit was presented from the driver indicating he had consumed alcohol in only modest proportions at a late night sushi bar and had consumed some sushi that made him physically sick. He went to his car for a short while and returned to the sushi bar where consumed a further beer and then departed with his friend as a passenger in his car. On his way home the driver had regurgitated some stomach contents into his throat within 5 minutes prior to the police stopping him and ergo within 7 minutes prior to his ASD test. He further indicated that when he was taken to the police station he threw up on 5 to 6 occasions within 5 to 10 minutes of each breath sample being provided on the Intox EC/IR II breathalyzer. A forensic alcohol expert report from Nizar Shajani was presented at the oral hearing that indicated that, based upon the drinking pattern provided by the driver’s Affidavit the driver’s BAC should have read under 80 milligrams by all the breath testing equipment (ie. on all three tests performed on him). The expert report indicated that both the ASD (Alcosensor IV DWP) and the breathalyzer used at the police station (Intox EC/IR II) can be fooled by “mouth alcohol” and produce falsely high results by failing to detect the “mouth alcohol”. The expert indicated that “mouth alcohol affect” can result from a subject regurgitating or vomiting up stomach contents which may contain alcohol (ie. beer) and breath testing being performed by the police within 15 minutes of same. The expert report suggested that all three breath tests may have been falsely affected owing to the vomiting and regurgitation of stomach contents into the throat of the driver. It was argued at the ADP oral appeal that the driver’s true blood alcohol content was lower than 80 milligrams even though all three tests suggested otherwise. Decision: “Based upon the evidence in its entirety, I am not satisfied on a balance of probabilities that before or while operating or having care or control of a motor vehicle you consumed alcohol resulting in your BAC [blood alcohol concentration] exceeding 80 mgs% within 3 hours or operating or having care and control of a motor vehicle”. Intended driving prohibition revoked, review fees refunded. (September 2014)

Facts:    The police reports obtained on the IRP appeal indicated that a witness (no name) had called the police reporting that the SB was an “N” driver and had been drinking and gave the address of a nearby hotel where the vehicle was headed.   A police officer (the 1^st officer)  saw the vehicle when it approached the hotel and indicated SB was the driver.  The vehicle detoured away and the 1^st police officer broadcast the direction of travel.   Another (2^nd)police officer unit found the vehicle parked with SB “walking away from the vehicle” and jogging away from the scene.   SB was detained for breath sampling and advised the 2^nd police officer that he had been drinking earlier at the Canucks game at GM Place.  The 1^st police officer attended the scene to confirm with the 2^nd officer that indeed SB was the one he saw driving.  SB protested that it was not he who had been driving the vehicle.  A demand for breath samples was made and two FAIL results were given on two separate ASDs.   ON APPEAL to the SMV IRP panel SB provided affidavit evidence suggesting that he had an argument with a girlfriend and had left the hotel with his (male) friend with the intent to re-park his vehicle.   He and his male counterpart detoured to a bar and drank a few beers and thereafter attended to pick up SB’s vehicle which was illegally parked to park it at the hotel for the night.   The friend drove the vehicle to the hotel from its earlier resting place but then detoured from there when he saw the police and later “ditched” the car by parking in nearby and leaving the scene and SB.   SB’s version was supported by a written statement from his male counterpart.  SB’s girlfriend did not provide any statement. There were therefore two different versions about who was driving before the IRP adjudicator on the appeal.  The IRP police report was prepared by the 2^nd police officer and NOT the 1^st officer who witnessed the alleged actual driving by SB.   On appeal a legal argument was developed based upon the BCSC decided case called Jacobs v. SMV, 2013 BCSC 1353 wherein the BC Supreme Court found that limited use might be made of hearsay from an third party person in these types of administrative decisions, especially when that person (here the police officer who actually allegedly witnessed SB driving) does not provide direct evidence or a report in support of same for the IRP panel.   DECISION:  “After considering the evidence, I am satisfied that you were not a driver within the meaning of section 215.41(1) of the Act”.   Driving prohibition revoked, no fines imposed, towing and storage fees paid by the SMV (April 2014).

Facts:    The police reports obtained on the IRP appeal indicated that a witness (no name) had called the police stating impaired driver had driven over a curb and into bushes.  The report indicated that witnesses (again no names) had smelled liquor from the driver’s mouth.  The police report also indicated that TWO INDEPENDENT WITNESSES (again no names) had identified MT as the “driver of the vehicle.”   Police attended and found the appellant in a coffee shop and noted symptoms of impairment including smell of liquor from his mouth, stumbling, eyes red and glassy.  The police report indicated that the “driver stated that he had not had any alcohol to drink today”.  The officer’s report indicated he made a demand for a sample of the appellant’s breath on an ASD but that the driver stated “GO FUCK YOURSELF, and I’m not going to provide a sample”.  The report also indicated that the appellant offered a reason for his failure to comply:  “He stated that he was not driving, and that he had no reason to provide a breath sample”.  The officer thereafter arrested the appellant for causing a disturbance and issued an IRP driving prohibition.  The appellant provided testimony through an affidavit that suggested he was delivering goods for a friend when his truck broke down, he called a friend to have a look at the mechanical issues who offered to attend to check into the problem.  While waiting for his friend to arrive the appellant went to a Pub and drank several beers.  After several hours the friend arrived and test drove the vehicle which in turn eventually broke down again and eventually limped into the parking lot where it came to rest diagonally in a parking spot and essentially died (became inoperable).  The friend left the scene by taxi to return to his own vehicle and the appellant went inside the coffee shop to sober up before taking the subway home.  He testified that he was found by the police initially in the coffee shop and not in the vehicle.  The appellant’s version of events was essentially supported by the friend’s statement which was submitted on the review.   There were therefore two different versions about who was driving before the IRP adjudicator on the appeal but the police report had NOT indicated the exact identity (names) of the witnesses that allegedly had seen the appellant driving, nor did it include a statement from them.   On appeal a legal argument was developed based upon the BCSC decided case called Jacobs v. SMV, 2013 BCSC 1353 wherein the BC Supreme Court found that limited use should be made of hearsay from an unknown/unidentified person in these types of administrative decisions.    DECISION:  “After reviewing the evidence before me, I am satisfied that you were not a driver within the meaning of section 215.41(1) of the Act”.   Driving prohibition revoked, no fines imposed, towing and storage fees paid by the SMV.  (March 2014).

Facts:   At 2:50 a.m. in a Lower Mainland suburb a police officer was conducting a police roadblock on a highway onramp.  The officer witnessed HG driving up to the roadblock with passengers in the vehicle and thereafter noticed an odour of liquor and the driver admitted to having consumed 3 beers with the last drink 2 hours ago in Vancouver.  At the roadside the driver provided two samples of breath into two separate ASDs with FAIL results on both tests at 2:53 a.m. and 2:56 a.m..   On the IRP oral review the driver testified in an Affidavit that he and his party had originally been drinking at a bar but then gone to a restaurant where they ate.  The driver testified said that after consuming some food he hereafter he had vomited as he was gluten sensitive and had eaten a gluten product.   After leaving the restaurant he had vomited and thereafter was “burping up small amounts of his stomach contents into his mouth” and regurgitating these contents in the back of his mouth.   After the vomiting episode the driver felt well enough to drive himself and his party home.  The passengers also testified by way of written statement that the driver had only consumed alcohol in a moderate amount at the bar but had later vomited after the late night snack.  An expert report from Nizar Shajani, forensic toxicologist was submitted showing that HG’s likely BAC would have been within the legal limit but that it was likely that the effects of the vomiting and regurgitation of alcohol from the stomach lead to FALSE FAIL results on the ASDs used.  Decision:   “After reviewing all of the evidence before me, on a balance of probabilities, I cannot be satisfied that the ASD results were reliable.  Consequently, I am satisfied that your BAC (blood alcohol content) was less than 80 mg% even though the ASD registered a FAIL.” Driving prohibition revoked, no fines imposed, towing and storage fees paid by the SMV.  (March 2014).

Facts:   At 00:45 am police were dispatched to a call concerning an erratic driver (speed erratic, swerving within lane, etc.).   An officer located the reported vehicle, pulling it over and then had dealings with the driver.   The officer noted indicia that the driver had consumed alcohol (odour of liquor, exaggerated movements, etc.) and the driver admitted to previous alcohol consumption.  The police made an ASD demand and the driver provided two samples of breath into two separate ASD devices.   Both devices registered “FAIL” readings.  The driver was served with a Notice of Driving Prohibition (NODP) and hired a lawyer to appeal that prohibition.   The materials being disclosed by the OSMV to the driver’s lawyer  had attached a Report to Superintendent (“RTS”)which was indeed signed by the investigating police officer but the jurat of the RTS (the place where it was supposed to have the Justice of the Peace’s (JP’s) signature, etc) was defective and incomplete.    The defect was noted by the OSMV adjudicator who then adjourned the appeal to a subsequent date so that the RTS could be properly sworn before a JP (as is required owing to the BCCA decision in R. v. Murray 2013 BCCA 363).   New material was thereafter disclosed by the police to the OSMV and later to the driver’s lawyer that appeared to correct the defect in the jurat.   At the subsequent appeal hearing the new material was objected to by the driver’s  lawyer as being suspicious in form and perhaps even fraudulently modified by the police officer and NOT sworn in front of a Justice of the Peace as the new document seemed to suggest.    As a result an argument was made that the OSMV did not have any evidence to consider in the hearing to support the prohibition at all.   Decision:   The SMV’s adjudicator on the IRP found as follows:  “Having reviewed the evidence, I am not satisfied that it was the commissioner for taking affidavits who modified the jurat, and as such, I do not find that the Report to Superintendent and attached evidence is properly before me.  Consequently, I do not have sufficient evidence before me to support the prohibition indicated in the Notice”.    As a result of these findings  the driving prohibition (which had previously been stayed awaiting disclosure of the new RTS with jurat modified) was revoked, and the monetary penalty and fees for towing and storage costs were suggested by the OSMV to be returned by the driver under the Lien on Impounded Motor Vehicle Regulation of the Motor Vehicle Act. (March  2014)

Facts: At 12:40 am TH was pulled over by the police driving after allegedly speeding, reacting slowly
around corners, taking evasive action by pulling onto a dead end road and performing a U-turn. The officer noted the driver had slurred speech, slow movements, trouble producing driver’s license and a strong odour of liquor on breath. Police officer indicated that he asked TH about his drinking that night and TH replied that he “had a couple rum and cokes and his last one was right before leaving The D” [which is a well known drinking establishment in the area]. Officer read ASD demand and took two breath samples from TH on TWO different ASD devices, the first ASD test was at 12:45 am (5 minutes after TH pulled over)and the second was taken 10 minutes later. Both ASD test produced a FAIL result
(or showed BAC well > 80 mgs %). On the IRP appeal TH and his passengers provided statements indicating that TH was only consuming alcohol very moderately as he was the designated driver. TH’s last sip from his glass of rum and coke at “The D” was presented to be at 12:35 am (5 minutes before being pulled over by the police). An alcohol forensic report (from Nizar Shajani) was produced on the appeal showing that an alcoholic drink taken within 15 minutes of both ASD could result in “mouth alcohol” (residual alcohol left in the mouth for a period after a last drink) producing FALSE FAIL results on an ASD and showing that TH’s actual BAC should have been below 30 mg% given the stated drinking pattern. One of the two breath samples was taken within 10 minutes of the stated last drink of rum and one of the breath samples was taken 20 minutes after the last drink of rum. Decision: The SMV’s adjudicator on the IRP found as follows: “ I am satisfied that your BAC (blood alcohol concentration) was less than 80 mg%”. (The decision implicitly accepts the appellant’s drinking pattern evidence over the police officer’s FAIL readings on the two ASDs). As a result of my findings I revoke your driving prohibition, monetary penalty and vehicle impoundment as required by s. 215.5(4) of the Act.

(February 2014)

Facts: At about 8:47PM SGW was stopped at a police sobriety checkstop in a Vancouver Island Community. Inside the vehicle were SGW and 2 passengers. The officer smelled an odour of liquor inside the vehicle and directed the vehicle off the roadway, he then inquired of all 3 persons as to whether anyone had consumed liquor, all denied same. The officer separated SGW from the other 2 passengers and SGW emphatically denied consuming any liquor. The officer apparently had SGW blow into his hand twice to confirm the smell of alcohol from SGW’s breath and by performing this “test” apparently confirmed to himself that the smell of alcohol was coming from SGW’s breath. The officer made a demand for samples of SGW and retrieved an ASD for sampling. Upon being presented the ASD SGW protested the grounds for the ASD. The officer maintained that he “smelled liquor” and SGW indicated “BULLSHIT YOU DID!” and questioned the officer further about his ability to refuse the sampling process. The officer apparently explained to SGW that if he refused then he would be charged with refusal. SGW questioned the officer further and upon not getting satisfactory answers to his questioning advised the officer he wanted to “phone [his] lawyer first” and walked away. The officer indicated to SGW that he was going to issue a roadside prohibition and returned to his police car. When the officer went to serve the police paperwork (including the Notice of Prohibition) upon SGW he was nowhere to be found. The officer went to the car and asked the passenger, SGW’s wife, about the location of her husband (SGW) and was advised that she did not know the location of SGW and that he apparently told her that he was “not going to lose everything over this and that he needed to speak to his lawyer” and then walked away. An argument was advanced that no alcohol had been consumed by SGW which was verified by the statements of the two other passengers, one of which had previously consumed alcohol.

Decision: The adjudicator wrote: “Mr. Butler argued that there was insufficient evidence before me that a lawful demand was made in accordance with the requirements of section 254… Based upon all of the evidence before me, I am satisfied on a balance of probabilities that [the officer] did not make a valid demand.”

** Note that there is a requirement in section 254 of the Criminal Code for any demand for breath samples into an ASD to be based upon an officer’s “reasonable suspicion “ that the offender has alcohol in his/her body and thus it is concluded that the adjudicator in this case was not sufficiently satisfied on the whole of the evidence presented that the officer had that such reasonable suspicion and ergo made an invalid demand for breath samples upon SGW which meant in turn that SGW could legally refuse said invalid demand.

Intended driving prohibition revoked, no fine imposed, application fee returned to the applicant (January 2014)

Facts: Sometime after 1:30am TF was pulled over by the police for speeding. TF was questioned by the first police officer about previous alcohol consumption and he denied any previous alcohol consumption. A second police officer took over the investigation from the first officer. She noted a smell of alcohol on TF’s breath and the police reports that were filed by this second officer on this matter did NOT indicate whether a legal “demand” or merely a “request” for breath samples was made to TF. An ASD device was produced by the officer and poor instructions/guidance was given to TF who had never blown into an ASD before. In total 6 separate attempts were provided by TF into the ASD device but none resulted in a satisfactory sample into the ASD and no reading was obtained (said the officer). The officer indicated that TF was only pretending to blow and never produced any air into the machine. She issued a Notice of Driving Prohibition – IRP to TF based upon the fact that she believed TF failed to provide a sample when demanded. TF contested and indicated that, given the lack of instructions, he tried his best to provide samples on the 6 occasions. TF’s evidence as supplemented by an expert report from forensic alcohol expert, Nizar Shajani, who indicated in his expert report that, according to the report that the officer had prepared for the SMV, the officer had made several and various mistakes in her use of the ASD . The expert report commented that what the officer said occurred regarding her use of the ASD could not possibly have occurred in a properly functioning ASD. Decision: “I am not satisfied that [TF] failed to comply with an ASD demand. As a result of my findings I revoke your driving prohibition, monetary penalty and vehicle impoundment as required by s. 215.5(4) of the Act.” Driving prohibition revoked, no fines imposed, towing and storage fees paid by the SMV (September 2013).

Facts: At 4:10 am the police officer note that they found MS on an side-by-side Razor ATV on a road in a remote community. There was non-specific reference in the police report to “erratic driving” at a time unspecified in the report that was filed. When the officer located MS his report made passing reference to the fact the MS was “observed driving vehicle” and that the “keys were in the ignition” and the “vehicle was running, lights were on”. The scant police report filed showed that MS was “sitting in the driver seat buckled in”. MS was taken from the scene to the police station where he blew twice into a breathalyzer device (not an ASD) which produced BAC readings of 90 mg% and later 80 mg%. MS was issued an ADP driving prohibition. On the IRP appeal it was argued that the police reports were very scant and vague and indeed an oversimplification of the actual circumstances. Statements and Affidavits were provided to show that MS had actually lent his ATV to another person (DR). DR had taken the ATV out into some remote trails and the ATV had hit a rock and damaged the gas tank and the drive train, making it inoperable. DR abandoned the ATV and retreated to MS’s house and the two had a couple beer and watched tv for a period of time. Later that morning, fearing the ATV may be stolen if left too long, the two went on to retrieve the broken ATV. The ATV was parked close to a road but at near a trial head. MS, who had an open beer with him, got into the driver’s seat, put the keys in and merely turned on the headlights so the two could see where they were going to push the ATV (ie. down the trail into a waiting pick-up). Interestingly MS indicated he tried to start the ATV merely for curiosity purposes and did not intend to drive in anywhere even if it did magically start. Decision: The SMV adjudicator indicated that MS was not a driver or in care and control of the ATV at the time the police arrived (4:10 am). Intended driving prohibition revoked, all monetary penalties paid by the SMV. (September 2013)