RSBC v. AC – ADP APPEAL SUCCESSFUL – REFUSAL TO PROVIDE SAMPLE -DRIVER FLEES POLICE AFTER NOT CONSUMING ANY ALCOHOL BUT LATER REFUSED TO PROVIDE A BREATH SAMPLE — INSUFFICIENT GROUNDS FOR POLICE TO ISSUE A DEMAND FOR A DRIVER’S BREATH SAMPLE AS NO LAWFUL GROUNDS FOR THE BREATH DEMAND EXISTED – ALSO NO VERBAL REFUSAL BUT ONLY A SHAKING OF HEAD TO A DEMAND FOR SAMPLES
Facts: On August 5, 2017 AC was at home watching Netflix and received a called from his friend (CL) who was in Vancouver and asked him to drive his car home to Richmond. CL was drunk. AC had not consumed any alcohol. AC was driven by his girlfriend to Vancouver and located CL who had a young female with him. AC got into CL’s Range Rover and commenced driving. At 1:50 am AC turned onto the Georgia Viaduct and saw a police roadblock ahead. AC reversed his position for about a block and parked CL’s vehicle in a spot at the side of the road. This was seen by a passing officer (Cst. M) who U-turned. AC, fearing arrest, immediately departed the scene on foot. He jumped a barricade and went down a stairwell, evading police pursuit. Cst. M stopped and radioed for help. Cst. M learned AC’s name from CL who stayed at the scene in the Range Rover. 10 minutes later a second officer (Cst. X) located AC fleeing and called out his name. AC stopped and was arrested by Cst. X for fleeing the police. AC explained to Cst. X that he had NOT consumed any alcohol and had only fled because of previous wrongful arrests by the police. Cst. M later arrived on scene and took over the investigation. Cst. M’s filed report noted AC “looked intoxicated”, had a “flushed face and poor fine motor coordination”. Cst. M issued AC a demand for a breath sample and she indicated in her report that AC indicated “he would not” be providing a breath sample. Cst. M’s filed report seemed to suggest a smell of alcohol was not ONLY AFTER this alleged verbal refusal. The officer issued AC an ADP 90 day driving prohibition and went further issuing criminal charges against AC for his “failure to provide a breath sample”. AC hired Jamie Butler to fight both the ADP 90 day driving prohibition and the criminal charges that followed it. Affidavit evidence was produced from AC, his friend (CL), CL’s female passenger and AC’s girlfriend, all supporting the fact the AC had not consumed any alcohol that night. Further AC indicated in his Affidavit that he did not “VERBALLY” refuse a breath demand but simply shook his head from side to side and said “I have not been drinking and will not be providing a sample”. He indicated he did not feel he had to provide a sample because he had not consumed any alcohol prior. Decision: “Did you not fail or refuse to comply with an ASD demand”? You have satisfied me that you did not fail or refuse to comply with the ASD demand”. Result: revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (August 2017)
Post-script: AC fled and evaded a Police Sobriety Road check by backing out and later running from the police. The reason he did this was for reasons other than a guilty conscience in trying to evade any drinking and driving related repercussions (he simply fled because he had been wrongfully arrested before and did not want any hassles on this night).
