Vancouver BC Impaired Driving Lawyer

Vancouver Criminal Lawyer - Brian Mickelson

Re: R v. Client 1
Vancouver Impaired Driving Lawyer: Brian E. Mickelson
Client issued a Notice of Driving Prohibition by the police. A review was conducted before the Superintendent of Motor Vehicles.

DRIVING PROHIBITION CASE FACTS:
Client pulled over after he is observed weaving in his lane and making an abnormally wide turn by the Langley RCMP. A demand for a breath sample is made at the detachment. Client refuses to blow unless he is permitted to have a cigarette beforehand.

ARGUMENT:
Your lawyer, Mr. Mickelson submits that there is no evidence of a demand following the failed ASD breath sample you provided. There is nothing in the grid to indicate a further demand was made upon you and no evidence of the time you were issued a further demand if in fact another demand was ever issued. Consequently, Mr. Mickelson states, without evidence of a breath demand there cannot have been a refusal.

HELD: PROHIBITION LIFTED:
I have considered the evidence before me and I concur with Mr. Mickelson's submission on the lack of evidence of a further demand ever being issued. Accordingly, based on the evidence before me I am satisfied that you did not fail or refuse to comply with the breath demand. PROHIBITION REVOKED

Re: R v. Client 2
Vancouver Impaired Driving Lawyer: Brian E. Mickelson
Client issued a Notice of Driving Prohibition by the Surrey R.C.M.P. A review was conducted by the Superintendent of Motor Vehicles.

DRIVING PROHIBITION CASE FACTS:
Client found in the driver's seat following a single vehicle accident. At the Surrey detachment, breath sample obtained indicating a blood/alcohol concentration well in excess of the legal limit.

ARGUMENT:
Brian Mickelson argues that the evidence is insufficient to conclude that the subject was over the legal limit. A certificate had not been produced, and the test results are illegible on the breath test tickets.

HELD: PROHIBITION LIFTED
The Datamaster C breath test tickets have been submitted but they are illegible. The Certificate of Qualified Technician has not been submitted. The only evidence I have of your BAC is the breath test tickets, and the condition of the tickets makes them insufficient as evidence of your BAC. I am not satisfied that your BAC exceeded 80mg% within 3 hours of operating or having care or control of the vehicle. PROHIBITION REVOKED

Re: R v. Client 3
Vancouver Impaired Driving Lawyer: Paul C. Doroshenko
Client issued a Notice of Driving Prohibition by the police. A review was conducted before the Superintendent of Motor Vehicles.

DRIVING PROHIBITION CASE FACTS:
Richmond RCMP stop client after witnessing her swerve through an intersection. A roadside screening test was performed with a failed result. The client was arrested and provided samples of breath indicating a blood/alcohol content of 170 mg per 100 ml of blood.

ARGUMENT:
Your lawyer, Mr. Doroshenko, submits that without knowing the times of the results there is no evidence if your results were 15 minutes apart and he questions the reliability and accuracy of the samples referred to by the officer. He also states that just because 4 samples were taken is no reason not to produce a Certificate of Analysis. Mr. Doroshenko also states there is no evidence of why or what a manual override is. He submits the officer failed to provide an explanation of what it is and why he felt it necessary to use it. As well, Mr. Doroshenko submits that you blew a total of six times and there is no explanation regarding the extra blows or why it was necessary. He questions the reliability of the results given that you displayed little or no indicia and admitted to having only one beer.

HELD: PROHIBITION LIFTED
I find no conclusive evidence to rely on with regard to the time of your breath test result. I am not satisfied on the evidence before me that your BAC (blood/alcohol concentration) exceeded 80 mg% within three hours of driving. PROHIBITION REVOKED

Re: R v. Client 4
Vancouver Impaired Driving Lawyer: Paul C. Doroshenko
Client issued a Notice of Driving Prohibition by the police. A review was conducted before the Superintendent of Motor Vehicles.

DRIVING PROHIBITION CASE FACTS:
Richmond RCMP follow client for 2 blocks before pulling him over. Following an admission of having consumed 2 beers, the officer demands a breath sample to an approved screening device. The client refuses to blow.

ARGUMENT:
Your lawyer, Mr. Doroshenko, submitted that in the first page of the Report to Superintendent the officer has failed to incorporate the narrative in his sworn report, contrary to the rule in Matous v. Superintendent of Motor Vehicles. Alternatively, Mr. Doroshenko has provided me with R. v. Smith with respect to the issue of whether the officer had sufficient evidence to form the suspicion that you had alcohol in your body.

HELD: PROHIBITION LIFTED
In the decision of Matous v. Superintendent of Motor Vehicles et al 2003 BCSC 1531 [the court] held that an unsworn narrative ought not to be considered as other relevant information, even when giving it less weight. In the circumstances where there is not indication in the sworn report that the contents of any additional report are incorporated, the adjudicator cannot consider the information. Therefore I cannot consider the contents of the narrative. PROHIBITION REVOKED

Re: R v. Client 5
Vancouver Impaired Driving Lawyer: Brian E. Mickelson
Client issued a Notice of Driving Prohibition by the police. A review was conducted before the Superintendent of Motor Vehicles.

DRIVING PROHIBITION CASE FACTS:
Police witness client swerving and driving slowly, and must box him in to stop his vehicle. Breath samples are obtained well in excess of the legal limit.

ARGUMENT:
Your lawyer argued that while the column heading Time/Date of Demand(s) has been completed the column heading Time/Date of Result has not been completed. Therefore, he argued that I cannot infer that the time and date of the demand is actually the time and date of the result.

HELD: PROHIBITION LIFTED
I acknowledge that while the officer provided evidence of you breath readings, the officer failed to indicate the date and time of the results. Consequently, I do not find that I can be satisfied that your BAC exceeded 80 mg% within 3 hours of operation or care and control. Therefore, I must revoke the driving prohibition. PROHIBITION REVOKED

Re: R v. Client 6
Vancouver Impaired Driving Lawyer: Brian E. Mickelson
Client issued a Notice of Driving Prohibition by the police. A review was conducted before the Superintendent of Motor Vehicles.

DRIVING PROHIBITION CASE FACTS:
Client found by police asleep in his vehicle. A demand for a breath sample is made. Client refuses to blow.

ARGUMENT:
Your lawyer, Brian Mickelson, states the evidence does not show that the demand was made forthwith or as soon as is practicable in accordance with s. 254 of the Criminal Code.

HELD: PROHIBITION LIFTED
Based on all of the evidence before me, I can not be satisfied that a proper demand was made. PROHIBITION REVOKED

Re: R v. Client 7
Vancouver Impaired Driving Lawyer: Paul C. Doroshenko
Following a motor cycle accident, client issued a Notice of Driving Prohibition by the police. A review was conducted before the superintendent of Motor Vehicles.

DRIVING PROHIBITION CASE FACTS:
Ambulance attendants respond to a motor cycle accident, and report to the police that the driver was drunk. Vancouver Police attend and breath samples are obtained over the legal limit.

ARGUMENT:
Your lawyer, Mr. Paul Doroshenko, submitted that the police officer's report does not establish that you operated or had care or control of a motor vehicle. He pointed out that there is no evidence of the time of the alleged driving, or evidence of a witness to the alleged driving.

HELD: PROHIBITION LIFTED
In consideration of the evidence before me, I find that I cannot be satisfied that you did operate or have care or control of a motor vehicle on the date and time in question. PROHIBITION REVOKED

Re: R v. Client 8
Vancouver Impaired Driving Lawyer: Paul C. Doroshenko
Client issued a Notice of Driving Prohibition by the Surrey RCMP. A review was conducted before the Superintendent of Motor Vehicles.

DRIVING PROHIBITION CASE FACTS:
Following a collision, RCMP attend, and demand a breath sample from the driver for the presence of alcohol. The driver refused to provide a breath sample.

ARGUMENT:
In his sworn Report to the Superintendent the police officer states that you were read your Charter rights, given the official warning but that you refused to provide breath samples. The Demand(s) for Sample(s) table on page 2 of the officer's Report records a refusal, but the Time of Demand and Time of Refusal are blank, with only the Time of Result filed in as 00:28 hours.

HELD: PROHIBITION LIFTED
Your lawyer, Mr. Paul Doroshenko, argues that evidentiary standards have not been met in that grid has not been completed and that there is no date or time of a demand recorded. I agree with him and therefore, I am not satisfied that there is sufficient evidence to show me that a demand for your to provide a breath or blood sample was actually made. PROHIBITION REVOKED

Re: R v. Client 9
Vancouver Impaired Driving Lawyer: Paul C. Doroshenko
Following an accident, client was issued a Driving Prohibition by the Vancouver Police. A review was conducted before the Superintendent of Motor Vehicles.

DRIVING PROHIBITION CASE FACTS:
The Vancouver Police attended the scene of an accident where a pedestrian had been struck. The client, identified as the driver, is arrested and provides breath samples.

ARGUMENT:
The cap of the one bottle was noted to be on the street next to the driver's door. Your lawyer suggested that this was evidence that you may have consumed some beer after the accident occurred.

HELD: PROHIBITION LIFTED
I find that there was a possibility that you drank some beer after the accident. PROHIBITION REVOKED

Re: R v. Client 10
Vancouver Impaired Driving Lawyer: Paul C. Doroshenko
Client issued a Notice of Driving Prohibition by the Surrey RCMP. A review was conducted before the Superintendent of Motor Vehicles.

DRIVING PROHIBITION CASE FACTS:
After his arrest for impaired driving, the client provided a breath sample in excess of the legal limit.

ARGUMENT:
Your lawyer, Paul Doroshenko, states that there is no time of driving in the evidence before me and he referred to the decision in Hicks v. the Superintendent of Motor Vehicles.

HELD: PROHIBITION LIFTED
I find no evidence in the sworn report regarding the time of driving of the alleged incident. Accordingly, I find I am unable to determine if your blood alcohol content exceeded 80 mg%. PROHIBITION REVOKED

Re: R v. Client 11
Vancouver Impaired Driving Lawyer: Paul C. Doroshenko
Langley RCMP issued client a notice of 90-day driving prohibition. A review was conducted by Mr. Doroshenko before the Superintendent of Motor Vehicles.

DRIVING PROHIBITION CASE FACTS:
After driving through a stop sign, client pulled over by the Langley RCMP and arrested for impaired driving. Breath samples obtained indicating a blood alcohol content of 150 mg in 100 ml.

ARGUMENT:
During your hearing your lawyer, Paul Doroshenko pointed out that the times in the officer's report do not make sense. He noted that the officer recorded your time of driving as 12:56 a.m. but reported that he issued a breath demand to you at 12:05 a.m. and that you consulted with legal counsel at 12:35 a.m.

HELD: PROHIBITION LIFTED
Since the timing of the events as reported by the Constable do not make sense, Mr. Doroshenko states that I cannot be satisfied that you operated or had care or control of a motor vehicle at 12:56 a.m. that evening and I agree. PROHIBITION REVOKED

Re: R v. Client 12
Vancouver Impaired Driving Lawyer: Paul C. Doroshenko
Client issued a 90-day ADP driving prohibition for having refused to provide a breath sample to the Surrey RCMP.

DRIVING PROHIBITION CASE FACTS:
Following a collision at an intersection in Surrey, the client, who drives for a living, was arrested and presented to the breathalyzer. She refused to provide a breath sample because she felt that she was not given a reasonable opportunity to speak with a lawyer.

ARGUMENT:
Mr. Doroshenko pointed my attention to three cases R. v. Kowalchuk, R. v. Allison and R. v. Clancy. In Kowalchuk, a Saskatchewan case, Mr. Justice Matheson held that a constable denied the accused his right to counsel, because the constable called Legal Aid when the man said he wanted a lawyer, and never asked the accused which lawyer he wanted. In Allison, Mr. Justice Long refereed to R. v. Kerr, an unreported decision in which Mr. Justice Bruce held that the police pre-empted the accused's right to counsel by waiting only 2 to 4 minutes after he left a message with his lawyer, then calling Legal Aid on his behalf without telling him that he could call his lawyer again, or any other lawyer, or asking if he wished to speak to Legal Aid. In Clancy, an Ontario case, Mr. Justice Long held that the onus upon the Crown to show a waiver of a right is very high. As the accused in this case consistently asked for a specific lawyer, Mr. Justice Long held that he had not waived his right to a lawyer.

Re: R v.Client 13
Vancouver Impaired Driving Lawyer: Brian E. Mickelson
Vancouver Police issued client a driving prohibition for refusing a breath sample at the roadside.

DRIVING PROHIBITION CASE FACTS:
After being stopped for unusual driving, the police made a breath demand and concluded that the client's behaviour constituted a refusal of the breath demand.

ARGUMENT:
Your lawyer argued that you were entitled to refuse the demand, because it was not lawful. He argued that the ASD demand was not lawful because it was made 10 minutes after the time of driving (indicated on page 1 of the Report as 2:40 a.m.) He pointed my attention to R. v. Cleaver, in which Judge Dhillon stated that the detention of a driver by the police for 8 to 11 minutes before an ASD demand was made was contrary to the Charter of Rights and Freedoms. Her Honour ruled that the ASD result could not be relied on, and could not form the basis for reasonable and probable grounds to demand a breathalyzer test. I acknowledge that I am bound by this decision.

HELD: PROHIBITION LIFTED
Based on the evidence before me, I cannot be satisfied that a lawful demand was made. I therefore find that it is more likely than not that you did not fail or refuse to comply with a demand. PROHIBITION REVOKED

Re: R v. Client 14
Vancouver Impaired Driving Lawyer: Paul C. Doroshenko
West Vancouver Police issued client a driving prohibition for refusing an ASD breath sample.

DRIVING PROHIBITION CASE FACTS:
Client stopped by the West Vancouver Police at 2:44 a.m. The officer detected an odour of liquor and made a demand for an ASD breath sample. After the officer explained the consequences of a refusal, the client told the officer that he didn't want to blow.

ARGUMENT:
Your lawyer, Paul Doroshenko, noted that there is no admission from you that you had consumed alcohol and that the odour observed by the officer was on your person, not your breath. He argued that the officer did not have reasonable grounds to make the ASD demand under s. 254 of the Criminal Code. He provided R. v. Webster, R. v. Khunkhun, R. v. Bowie and R. v. Hoodicloff in support of his submission.

HELD: PROHIBITION LIFTED
In considering your lawyer's submissions, the cases he provided, and the officer's report, I am not satisfied that a proper demand was made to provide a sample of your breath. I therefore revoke your driving prohibition. You may resume driving. PROHIBITION REVOKED

Re: R v. Client 15
Vancouver Impaired Driving Lawyer: Paul C. Doroshenko
Whistler, B.C. RCMP issue a Notice of Driving Prohibition (ADP). Mr. Doroshenko conducted the review.

DRIVING PROHIBITION CASE FACTS:
Following a civilian complaint, Whistler RCMP attend an accident scene where the client has allegedly driven into a pole. Breath samples indicate 160 mg per 100 ml of blood.

ARGUMENT:
Your lawyer, Paul C. Doroshenko submitted there is no evidence of when you operated or had care or control of a motor vehicle. He submitted that the officer’s report only indicates that he arrived on the scene at 1:30 p.m. There is no evidence of when the accident actually occurred. The report indicates that you explained how you crashed your vehicle and that a witness pointed you out as the driver.

HELD: PROHIBITION LIFTED
I agree with your lawyer, that there is no evidence of when you were driving or in care or control of the vehicle. The Report indicates that the officer arrived on scene at 1:30 p.m. However he did not provide any evidence of the time of driving. Without a time of driving or care or control, I am unable to determine if your blood alcohol concentration exceeded 80 mg % within three hours of your operation or care or control of a motor vehicle. PROHIBITION REVOKED

Re: R v. Client 16
Vancouver Impaired Driving Lawyer: Paul C. Doroshenko
Following an accident and an allegation of hit and run, Richmond, B.C. RCMP issue a Notice of Driving Prohibition (ADP). Mr. Doroshenko conducted the review.

DRIVING PROHIBITION CASE FACTS:
Richmond RCMP attend an accident scene where the client has allegedly struck one vehicle and then driven away, eventually colliding with a pole. The client was said to have a blood/alcohol concentration of 190 mg per 100 ml of blood.

ARGUMENT:
Your lawyer, Paul C. Doroshenko submitted there is no evidence of when you operated or had care or control of a motor vehicle. He submitted that the officer’s report only indicates that he arrived on the scene at 1:30 p.m. Paul Doroshenko argued that the time of driving was unreliable and therefore information concerning blood/alcohol concentration was meaningless. The evidence indicates that the demand for a breath sample came five minutes before the time of driving. This is illogical. The concentration means nothing if the time of driving cannot be determined.

HELD: PROHIBITION LIFTED
The constable marked the time of care and control as 27 minutes after the hour. Further, he stated that he read an Approved Screening Device demand at 25 minutes after the hour. In examining this I find that this is not possible. Consequently, I do not find I have a reliable time of driving. Therefore I am not satisfied that you operated or had care and control of a motor vehicle on the date in question. PROHIBITION REVOKED