90 Day Immediate Roadside Prohibition – Blood Sample
Hung v. British Columbia (Superintendent of Motor Vehicles) 2015 BCSC
The driver had struck a traffic light pole, causing significant damage to his vehicle. The paramedics and fire department was on the scene. The officer’s first observation of the driver was that he was not injured but was being transferred to Vancouver General Hospital by ambulance. The officer noted a strong smell of alcohol on Mr. Hung and while on route to the hospital, the driver began to vomit. After the accused vomited, the officer made a blood demand rather than a breath demand. Once at the hospital the driver refused to provide a blood sample to the officer.
Joel Whysall argued that the officer made an invalid blood demand pursuant to the Criminal Code because the evidence did not support that it was impractical or not possible to collect a sample of the driver’s breath.
Joel Whysall was successfully in having the Administrative Driving Prohibition revoked.
A blood demand is only valid if it can be established that a breathe sample is not possible either because the accused cannot provide one or doing so was impractical. Police officers cannot make a blood demand simply because it is more convenient than a breathe sample due to the invasive nature of a blood demand. To determine whether a blood demand is valid, the officer must have a subjective belief that a blood demand is necessary and the blood demand must be objectively reasonable. With regard to the vomiting, the Court held that the simple act of vomiting does not meet the threshold set out by the Criminal Code to permit an officer to make a valid blood demand. The blood demand made by the officer was not objectively reasonable in the circumstances.
The decision of the adjudicator was quashed and a new hearing was ordered