RSBC V. CL – IRP APPEAL – SUCCESSFUL – OCCUPANT/DRIVER OF TRANSPORT TRUCK MISSED DEER WENT OFF ROAD ON MAJOR HIGHWAY AND DRINKS ALCOHOL AWAITING ARRIVAL OF TOW TRUCK FOR HELP – VEHICLE INOPERABLE AFTER MVA — EHS ATTEND – OCCUPANT/DRIVER FOUND IN FIRETRUCK AT TIME OF POLICE ARRIVAL HOURS AFTER MVA – PROVIDES TWO FAIL SAMPLES ON ASD — FOUND ON APPEAL TO NOT BE A “DRIVER” WITHIN THE STRICT MEANING OF MOTOR VEHICLE ACT – PROHIBITION REVOKED
Facts: On February 17th CL set out in transport truck for a western Province from Lower Mainland, BC and somewhere near the Alberta border a deer jumped out in the roadway and CL swerved to miss the deer and in the process the transport truck veered off the road and in the process blew a tire. CL radioed other truck drivers for help. In the interim as weather was below freezing Celcius CL climbed into the sleeping compartment of his truck and drank some “Slivovitch” (plum brandy) that he had brought with him as a gift for someone else. Later an unnamed witness stopped and agreed to call for help at the next town. Witness advised police that CL had been drinking alcohol. According to CL it was more than 3 hours after the mva that a fire truck with paramedic showed up (the precise timing of the mva was not mentioned in the police report). CL was being checked over by the paramedic when 5 minutes later the police showed up on scene. Officer noted odour of alcohol and driver advised the officer that he had been consuming some alcohol hours earlier. Officer read ASD demand and CL provided to FAIL samples of two separate ASD units. CL hired lawyer Jamie Butler who provided on appeal CL’s Affidavit regarding his version of the accident and what had occurred before and after the mva. The Affidavit conflicted with the police officers written report on a number of points. Argument was presented on the IRP appeal that CL was not a “driver” within the meaning of the Motor Vehicle Act as too much time had passed since the mva and that CL had consumed alcohol only AFTER the mva. On the IRP oral appeal the adjudicator found as follows: “Having reviewed all of the evidence before me … I am satisfied that you were NOT a driver within the meaning of section 215.41(1) of the [Motor Vehicle] Act.” Driving prohibition revoked, no fine imposed, all towing and impound were fees paid by the RSBC. (March 2015)
