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).
