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).
