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 4TH 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 3rd 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).
