RSBC v. VC – ADP APPEAL SUCCESSFUL – INSUFFICIENT GROUNDS FOR POLICE TO ISSUE A DEMAND FOR A DRIVER’S BREATH SAMPLE FOUND TO BE A LAWFUL DEFENCE TO A DRIVER’S FAILURE TO PROVIDE A BREATH SAMPLE
Facts: On July 14, 2017 the Driver (VC) had picked up his friend (JB) and afterwards drove from Surrey to Vancouver to meet two young women on a double date. All four of them met up at a restaurant/bar in Vancouver where VC’s friend JB and the two women drank alcohol while VC only consumed Red Bull and water. All four left the bar at closing and walked to a pizza joint and later to one of the young woman’s residences where VC again only drank non-alcoholic beverages while the other three drank alcoholic beverages as the evening progressed. At 4:22 am VC and JB were driving home to Surrey from a “good night out”. VC drove through East Hastings and Main which is an area of Vancouver riddled with police at that hour. Officer Chow indicated (in his written report later filed with RSBC) that the VC’s vehicle pulled up beside him at a red light and then turned right without signalling. Officer Chow conducted a stop of VC’s vehicle (likely, in this author’s opinion, because of the time of night and not the alleged infraction). Officer Chow indicated that he could smell alcohol coming from inside the vehicle. VC advised the officer, when questioned, that the last time he had consumed alcohol was several days prior. VC argued with the officer as to the reason for the alleged stop (ie. VC denied not signalling and confronted the officer about making this up). The officer demanded a breath sample from VC but VC stood firm in the fact that the officer was lying about the reason for the stop and demanded to speak to a lawyer. VC advised the officer he had no legal right to demand a sample from him under these circumstances. The officer issued VC an ADP 90 day driving prohibition and went further issuing criminal charges against VC for his “failure to provide a breath sample”. VC hired Jamie Butler to fight both the ADP 90 day driving prohibition and the criminal charges that followed it. Affidavit evidence was produced from VC and his friend that indicated that VC had indeed not consumed any alcohol on July 14 or 15th. The reason for the initial stop was put in issue as it was utterly impossible that the officer could have seen the rear signal light of VC’s car at the time he allegedly saw it at the stop light (as VC’s car was beside and not in front of Officer Chow’s car). Case law was presented at the oral hearing that a driver can lawfully refuse a breath demand if he or she has not consumed any alcohol prior to the officer issued demand. The BC courts have indicated that the police officer must have lawful grounds for demanding a breath sample or else the demand itself is unlawful (see: Ema v SMV, 2013 BCSC 47 and Marton v. SMV, 2015 BCSC 422). Decision: “I am not satisfied that a proper demand was issued to you”. Result: revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (February 2018)
Here as a post-script it is noted that lawful grounds for a breath sample CAN be based upon as combination of factors that might not include a driver’s prior admission of consumption of alcohol or the smell of alcohol on a driver’s breath BUT the absence of those indicators (in MOST cases) will make it VERY LEGALLY DIFFICULT for a police officer to legally force a driver to provide a breath sample. As the law stands currently, an officer must have a “reasonable suspicion” that a driver has alcohol in his body at the time of driving in order to effect a lawful breath demand by a driver into an ASD. The refusal of an unlawful demand may be legally excusable in these circumstances. In this case after the ASD appeal overturned the 90 day prohibition the Crown Counsel in Vancouver was later convinced that all criminal charges recommended by the officer should be dismissed – resulting in a double victory for VC!
