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).
