90 Day Immediate Roadside Prohibition – Refusal
Marton v. British Columbia (Superintendent of Motor Vehicles) 2015 BCSC 422
The accused was stopped for going through a stale amber light. The officer stated that he detected an odour of liquor on the breath of the driver, but the accused denied consuming any alcohol whatsoever. The accused had witness statements corroborating that they did not consume any alcohol. The accused deposed that they had genuinely attempted to provide two breath samples into the Approved Screening Device (ASD). The officer deemed the accused to be refusing to provide a breath sample because of his inability to provide a breath sample.
The officer inappropriately deemed the driver to be refusing to provide a breath sample and was not given sufficient opportunity to comply with the demand of the officer. Secondly, the breath demand was invalid because the officer’s grounds for breath sample was not objectively reasonable in the circumstances.
Joel Whysall & Cathryn Moore were successfully in having the Immediate Roadside Prohibition revoked.
The delegate utterly failed to address the witness evidence that nary a drop of alcohol had passed the Petitioner’s lips on the night in question. If this was accepted as true, then there would have been no alcohol on the Petitioner’s breath and the officer’s belief to the contrary would be at best mistaken and at worst something far more sinister…. The delegate should have considered all of the evidence, particularly the evidence of the Petitioner about a further request for an opportunity to provide a breath sample in determining whether there was intentional noncompliance with the breath sample demand. This evidence goes to the heart of whether it had been proven on the balance of probabilities that the Petitioner had intentionally failed or refused to provide a breath sample. The delegate’s reasoning and decision on this point was manifestly flawed and does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
The decision of the adjudicator was quashed and a new hearing was ordered