90 Day Immediate Roadside Prohibition – Refusal
Yi v. British Columbia (Superintendent of Motor Vehicles) 2014 BCSC 304
The accused was stopped at a police roadblock. The officer detected a strong odour of liquor coming from the passenger compartment of the vehicle. The accused admitted to only having a sip of beer. The officer asked the accused get out of the vehicle so that he could better assess his sobriety. The officer noted in his Report that he detected a strong odour of liquor coming from the accused’s breath but did not report any other signs of impairment. The officer than made a demand that the accused provide a sample of his breath for analysis. The accused was permitted to make six attempts to provide a sample but on each attempt failed to do so. The officer issued a 90 day Immediate Roadside Prohibition for a Refusal.
Joel Whysall argued that the intention of the driver must form part of the Adjudicators reasoning and that the amount of alcohol consumed by a driver is a relevant consideration.
Joel Whysall was successful in persuading, the BC Supreme Court Supreme Court to set aside the adjudicators decision to uphold the Immediate Roadside Prohibition (IRP).
“In this case, I have concluded that the adjudicator’s decision is not reasonable. In my view, the petitioner has been denied the opportunity of having the adjudicator consider relevant evidence with respect to an essential element of the offence with which he was charged and to a decision based on an assessment of all relevant evidence as a whole. I am also unable to satisfy myself that the adjudicator appreciated that the intention to produce a failed test was an essential element of the offence. As I read the adjudicator’s reasons, rather than directing his mind to the question of the petitioner’s intention he appears to have proceeded on the basis that the offence was made out once the actus reus was established.”
The decision of the adjudicator was quashed and a new hearing was ordered.