RSBC v. AS – IRP APPEAL SUCCESSFUL – ROADSIDE REFUSAL — ANXIETY-DRIVEN ASTHMATIC CONDITION AND CHEST INJURIES FROM MVA CAUSES DRIVER TO BE UNABLE TO GIVE PROPER BREATH SAMPLES
Facts: On August 1, 2016 long weekend AS attended at a restaurant with his friends and consumed some Mexican food and a few beers. AS drove home and was involved in a motor vehicle accident where he rear-ended another vehicle stopped at a red light causing severe damage to both vehicles. AS had become frantic and left then came back to the scene. Police were called and AS was found sitting on the curb. Officer indicated that AS was “unable to sit himself up”, had “slurred speech”, had “an odour of liquor about him” and “glossy eyes”. Police demanded a breath sample of AS. An ASD was presented to AS and the police report indicated AS did not make a proper seal with his lips around the mouthpiece and that he thereafter only “pretended to blow”. AS was given four opportunities to provide samples and police then deemed a “refusal”. Officer issued an IRP Notice of Driving Prohibition and Vehicle Impoundment. AS hired Jamie Butler to appeal it. Evidence was presented by way of Affidavit in which AS indicated he had previously consumed 2 beer and produced a restaurant receipt as proof. AS indicated that he had been distracted by incoming text messages at the time of the accident and due to the severity of the mva had smashed his head and chest on the airbags. His knee was injured in the mva and this is why he could not walk or stand properly after the mva. He became anxious at the scene after the mva and his pre-existent asthmastic condition plus his chest injury made it difficult for him to breath normally. He indicated he tried to provide breath samples but owing to his anxiety-driven asthma and chest injuries he could not do so. Forensic expert Nizar Shajani provided an expert report indicating that given the amount of alcohol consumed by AS, his potential maximum BAC would have been below the legal limit. Mr. Shajani indicated that not all subjects can produce enough air flow to satisfy the ASD, especially those with respiratory conditions like asthma. Decision: “You have satisfied me that you did not fail or refuse to comply with an ASD demand”. Result: It took the RSBC 6 months to issue a written decision and during that time AS had a temporary driver’s license permitting him to drive. Later revocation of driving prohibition – no fines imposed – and all towing and storage fees reimbursed to AS (February 2017)
Postnote: As a result of the mva and police investigation AS was breached by ICBC who would not initially reimburse him for his SUV which was substantially damages and written off. He also faced possible civil consequences owing to injuries caused to those injured the mva. The IRP decision was issued and ICBC reimbursed AS for the full value of the SUV. End result: one very happy client!
