RSBC v. CS – IRP APPEAL – SUCCESSFUL – NO SMELL OF ALCOHOL OR ADMISSION OF PREVIOUS CONSUMPTION – NO REASONABLE GROUNDS FOR BREATH SAMPLE SO REFUSAL WAS REASONABLE – OFFICER INDICATES HE SMELLED ALCOHOL ON DRIVER’S BREATH – DRIVER INDICATES IN AFFIDAVIT SHE HAD NOT CONSUMED ANY ALCOHOL AND THAT SMELL OF ALCOHOL WAS FROM SPILLED WHISKEY IN THE FOOTWHEEL OF HER VEHICLE
Facts: On June 1, 2014 Officer saw driver leaving Pub parking lot and “nearly struck a group of people”. Officer stops vehicle and finds CS and male passenger. Officer indicates in his sworn report that he “detected a strong odour of liquor on driver’s breath” and when queried driver said her last alcoholic drink was “15 hours ago”. Officer gave breath demand and driver told officer that “she understood what her jeopardy was” and indicated “her lawyer told her to never provide a breath sample” and refused any testing. Driver issued a Notice of Driving Prohibition. Driver hires Jamie Butler to appeal her IRP driving prohibition. Affidavit evidence produced by driver explaining that she was merely picking up a friend from the Pub and when she exited the parking lot of the Pub she was merely avoiding several potholes in the parking lot and swerved around them. She confirming that she had not consumed any alcohol but that her male passenger had placed a mickey of whiskey in a bag under the seat and that the whiskey had unwittingly leaked onto the floor of the vehicle. An argument was advanced that the Officer was mistaken and did not smell alcohol on the driver’s breath but only smelled alcohol inside the vehicle. Case law regarding the sufficiency of symptoms amounting to reasonable grounds for a valid breath demand to be made was produced. The BC case law suggested that absent a smell of alcohol on a driver’s breath OR an admission of “recent consumption” of alcohol from the driver then this officer lacked reasonable grounds to demand a breath sample and thus the driver could legally refuse the “invalid” or unlawful demand. Decision: “I am satisfied that the peace officer did not make a valid ASD demand.” Driving prohibition revoked, no fine imposed, all towing and storage fees were eventually returned to the driver. NOTE: It took the RSBC IRP adjudicator almost 26 months to provide a written decision on this matter and no reason was given as to WHY it took so long. (August 2016)
