Naughton v. British Columbia (Superintendent of Motor Vehicles) 2014 BCSC 1250

The driver was stopped for driving in excess of the speed limit. The officer noted an intoxicating odour of liquor on the breath of the driver. The driver deposed that they had consumed two beers earlier in the evening. The driver deposed that they were feeling sick, had a fever and had recently consumed NyQuil before providing two breath samples into an Approved Screening Device (ASD). Both ASDs registered a fail.

 A driver who receives an Immediate Roadside Prohibition is not to be held to the impossibly high threshold of showing definitive evidence that mouth alcohol was a factor. Rather, it is sufficient that the circumstances present significant doubt about the reliability of the samples. Secondly, the Adjudicator failed to consider the evidence of the driver’s fever and the evidence that a fever can cause falsely high breath test readings and render the results of the ASD unreliable.

Joel Whysall & Cathryn Moore were successfully in having the Immediate Roadside Prohibition revoked.

The adjudicator’s Decision falls short of meeting the reasonableness standard because it fails to explain or account for cogent evidence tending to cast doubt on the reliability of the analysis on the basis of which the Notice of Driving Prohibition was served, and it relies on facts not supported by the evidence in making a finding of reliability of the analysis. In particular, the adjudicator rejected the applicant’s evidence of recent consumption of alcohol (NyQuil) based on a misapprehension of the evidentiary record that was before him and by making findings negating the possible presence of mouth alcohol vitiating the reliability of the impugned analysis based on that misapprehension. Secondly, with respect to the issue of the temperature of the applicant’s breath, the adjudicator appears to have rejected or ignored the evidence put before him correlating a fever with a higher breath temperature and a falsely high reading, without explaining how or why he did so ….His apparent requirement for more or other evidence does not explain why he was unable to draw an inference based on what was before him, and may, in context, be seen as placing an onus on the applicant to prove affirmatively that the impugned analysis was unreliable, rather than to permit him to rely on evidence casting sufficient doubt on its reliability to successfully resist such a finding. I conclude the reasoning of the adjudicator, in light of the context set out above, does not possess the requisite degree of justification, transparency or intelligibility to meet the standard of reasonableness.