RSBC v. IF – IRP APPEAL SUCCESSFUL – REFUSAL TO PROVIDE SAMPLE – CHEST INJURY FROM CAR ACCIDENT CASUING BREATHING ISSUES THAT PREVENTED PROPER BREATH SAMPLING FROM OCURRING-– REASONABLE EXCUSE
Facts: On the morning of December 1, 2017 the Driver, IF, was involved in packing up her residence for a move. Her father helped her to with packing. While packing IF had a coffee and Bailey’s Irish Cream (which contains alcohol). IF then drove to work at about 3:00pm. It was raining and a IF was on a one lane highway near Nanaimo. IF failed to see a vehicle ahead was attempting to turn into a gas station. IF applied the brakes and collided with this vehicle causing IF’s vehicle severe front end damage. In the course of the mva IF was thrown forward and struck her face and chest on the steering wheel with such force that the steering wheel was bent by the blow. IF suffered facial lacerations and bruising to her chest. IF was taken from the vehicle and placed in an ambulance. While in the ambulance IF was given some kind of medication (likely morphine) and this made her “loopy” and disorientated. A police officer (whose name I will not mention here for a variety of reasons) then came into the ambulance and noted the smell of alcohol on IF’s breath. He thereafter demanded breath samples from IF and produced an ASD device for her to provide a sample. IF was disorientated and did not recall much of what was happening after the mva. IF did not even later recall the officer’s demand. The officer indicated that IF was given NINE OPPORTUNITIES to provide a proper breath sample but she failed to do so. He said in his report that IF was giving shallow breath samples and on some occasions would not provide any breath. IF did not later recall any of this. IF was taken to the hospital and the officer went with her. At the hospital IF became more lucid and she had a discussion with the officer about her previous consumption of alcohol indicating to the officer that she had “one drink at 10 o’clock”. The officer issued her an IRP Notice of Driving Prohibition. IF hired Jamie Butler to fight the IRP driving prohibition. Affidavit evidence was produced from IF confirming her limited alcohol consumption (which was confirmed by her father’s written statement) and confirming her injuries. As IF did not recall much before she got to the hospital she could not directly refute the officer’s written statement as to what exactly happened during the breath sampling. She did, however, indicate that she had NO REASON to NOT provide a sample. Medical clinical records were obtained from the hospital and later treatment records from her family physician were also produced. Photographic evidence of IF’s facial lacerations and chest bruises were also produced. An expert report from a forensic expert (Nizar Shajani) indicated was submitted that indicated that IF would not have been impaired by the coffee and baileys and further indicated that “some subjects with respiratory conditions cannot provide adequate samples”. Jamie Butler argued that the officer had to basically be an idiot to make a demand and attempt sampling from IF under these circumstances. Decision: 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. (December 2017)
Post-script: This was a challenging IRP appeal simply because IF could not remember much of the sampling procedure. She was disoriented from the head injury and medications she had received from the EHS. She therefore could not refute much of what the officer had written in his report about her “impaired condition” and failure to provide samples. Medical, expert and photographic evidence was KEY in this successful appeal.
