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)
