RSBC v. HG — IRP APPEAL – SUCCESSFUL – DRIVER ALLEGEDLY TURNED OFF ONTO A SIDE STREET TO AVOID A POLICE COUNTERATTACK ROADBLOCK – DRIVER STOPPED AND INVESTIGATED FOR IMPAIRED – DRIVER REPEATEDLY ADVISED THE OFFICER THAT HE HAD NOT CONSUMED ANY ALCOHOL THAT EVENING – OFFICER SMELLED A STRONG ODOUR OF LIQUOR COMING FROM THE DRIVER’S VEHICLE BUT WAS VAGUE ABOUT ALCOHOL EMANATING FROM DRIVER’S BREATH – 2 OTHER OCCUPANTS IN DRIVER’S VEHICLE HAD BEEN DRINKING ALCOHOL — DRIVER GIVEN ASD DEMAND BY OFFICER BUT LATER FAILED TO PROVIDE SUFFICIENT BREATH TO REGISTER A PROPER SAMPLE – ON APPEAL THERE WAS INSUFFICIENT EVIDENCE TO ESTABLISH A LAWFUL DEMAND WAS MADE AND THUS THERE WAS NO REFUSAL BY THE DRIVER — PROHIBITION REVOKED
Facts: At 2:50 am on July 5, 2015, driver HG turned off a major street in Vancouver and was later stopped by a police officer. Up ahead was a counterattack roadblock and the officer pulled HG over as a result of HG looking to be avoiding the roadblock. HG had two other occupants in his vehicle one of which advised the officer that the reason they had turned off the road was to double back to go to a McDonald’s drive-thru. The officer filed a police report that indicated that she smelled a “strong odour of alcohol coming from the driver’s vehicle”, that the driver had “red bloodshot eyes” and a “glazed blank expression”. The police report indicated that the driver repeatedly denied consumption of any alcohol whatsoever that night. Despite this the officer read the driver an ASD demand and later produced an ASD for the driver to provide a breath sample. The driver failed on repeated occasions to provide sufficient breath samples into the ASD and the officer deemed a refusal and served a driving prohibition on the driver. On the IRP oral appeal hearing HG’s lawyer, Jamie Butler, presented HG’s affidavit indicating that he did not drink any alcohol that night and provided statements from the other two occupants of HG’s vehicle verifying same. Mr. Butler then presented a very interesting and well-thought out legally framed argument which cited case law and relevant legislation. This argument did not FIT within any of the prescribed “GROUNDS FOR REVIEWS” suggested on the tick-box form provided by RoadsafetyBC in the application for review process. Essentially the argument presented suggested that the relevant provisions of the Motor Vehicle Act governing IRP driving prohibitions incorporates the Criminal Code requirement of an officer having to possess a “reasonable suspicion” that a driver has alcohol in his body BEFORE that officer can issue a LEGAL demand for breath samples from that driver. Given that the driver HG denied consumption of alcohol it was argued that the smell of alcohol coming from the vehicle (where there were two others present who had been consuming alcohol) did not give rise to sufficient objective grounds for the officer to make a LEGAL demand for samples from HG. It was argued that officer did not have sufficient grounds to make a legal demand for a breath sample from HG and thus HG was entitled to refuse to provide a sample. Decision: “The issue of whether you failed or refused to comply with a demand is twofold. First, the evidence must establish that an officer made a lawful demand on you to provide a sample of your breath. Second, the evidence must establish that you failed or refused to comply with the demand. In reviewing the police documents before me I find that Officer Meadwell has failed to provide evidence sufficient to establish that she made a lawful demand on you on July 5, 2015.” Driving prohibition revoked, no fines imposed, towing and storage fees paid by the RSBC. (July 2015).
