RSBC v. OI – IRP APPEAL SUCCESSFUL – FAILURE TO PROVIDE BREATH SAMPLE — DRIVER INDICATED THAT HE HAD NOT CONSUMED ANY ALCOHOL AND ALSO HAD SUNBURNED DRY LIPS AND WAS IN PAIN FROM HANDCUFFS ON HIS WRISTS AT TIME OF TESTING AND HE TRIED TO PROVIDE A BREATH SAMPLE BUT WAS UNABLE TO DO SO – OFFICER DEEMED A REFUSAL BUT CONFLICTED WITH HIS POLICE REPORT THAT INDICATED THAT HE OFFERED DRIVER A “SECOND TEST” — NO FAILURE TO COMPLY FOUND ON APPEAL
Facts: On November 28, 2016 the Driver (OI), a businessman, had been working on winterizing his boat at a marina, returned home, had a late dinner and went to sleep. His wife called him for a ride home from her girlfriend’s residence. OI’s wife had over-consumed alcohol. OI drove from West Vancouver to pick his wife up in North Vancouver. On the way back home he was stopped by the police as a result of his own admitted failure to stop at a stop sign. Officer noted the smell of alcohol (OI denied consumption and indicated to the officer at the time that it was his wife (passenger) that had consumed alcohol). Officer making a breath demand regardless. Officer indicated in his report that OI became argumentative with him — arguing with the officer about the officer’s failure to have grounds for a breath sample owing to the fact that OI had not consumed any alcohol and was merely picking up his wife. Officer did not relent and later put OI in handcuffs and had OI attempt to provide breath samples while cuffed. Officer deems refusal after seven reportedly “feigned” breath attempts. Officer issued an IRP Notice of Driving Prohibition and Vehicle Impoundment. OI hired Jamie Butler to appeal it. On the officer’s submitted report he had indicated, without any further explanation, that he had offered OI a “second breath test” even though this was an alleged refusal/failure to provide situation. Evidence was then presented by the defendant by way of Affidavit in which OI indicated that he had not consumed any alcohol that night. He also indicated that the machine the officer was using had failed to work and that the officer then used a second ASD. He questioned/argued with the officer about both the ASD machine not working properly and the lack of grounds for the breath demand after which the officer put the handcuffs on him very tightly and OI indicated that he was thereafter wreathing in pain from the handcuffs. He also indicated that due to a recent trip abroad he had severely cracked and sunburned lips and that owing to the cracked lips and painful conditions brought on by the very tight handcuffs he could not provide proper samples though he made earnest attempts to do so. It was argued by Jamie Butler that the officer did not have the legal grounds for the breath demand in the first place (which is required by the Motor Vehicle Act) and also argued that there was no refusal owing to the conditions under which the samples were alleged to have been taken (ie. with handcuffs on causing pain affecting breathing pattern). As a result of the sloppy police report it was also argued that there was a live question as to whether the officer had offered a “second test” after deeming a refusal which would appear nonsensical but that there was no police evidence to suggest otherwise. Decision: “Did you not fail or refuse to comply with an ASD demand?” I have carefully considered all of the evidence before me. You have satisfied me that you did not fail or refuse to comply with a valid ASD demand” Result: driving prohibition revoked – no fines imposed – all towing and storage fees paid by RSBC. (December 2016)
- Here as a post-script it is noted that the IRP Appeal Adjudicator did not specifically address that the officer did not actually smell alcohol on the driver and therefore lacked the grounds for a “valid” breath demand but that is the conclusion that one must draw from the decision rendered.
