90 Day Immediate Roadside Prohibition
Robbins v. British Columbia (Superintendent of Motor Vehicles) 2014 BCSC 980
The accused was issued a notice of 90-day immediate roadside driving prohibition by the officer, on the basis that two samples of her breath registered a “Fail” on two different Approved Screening Devices (ASD) and her ability to drive was affected by alcohol. However, there was a clear defect in both certificates in that the qualified calibrator did not certify that she was qualified to calibrate the type of ASD in question. The certificates have two boxes to indicate the type of ASD to which the certificate relates, but on both of these certificates, neither box was checked.
The issue involved in the present case is fact-specific, namely, whether the evidence before the adjudicator permitted a reasonable inference that the ASD devices used by the officer with the accused were properly calibrated by someone who was qualified to calibrate them. The adjudicator in the Review Decision noted that there was a defect in the certificates, but found that the other evidence was sufficient to prove, on a balance of probabilities that the ASDs were calibrated by a qualified calibrator. Joel Whysall argues that unless the ASD certified calibrator was qualified to check the calibration of the two ASDs that were used by the certified calibrator, her certification that she checked the calibration is valueless.
Joel Whysall was successful in having the Immediate Roadside Prohibition revoked.
“I conclude that the Review Decision is unreasonable. A calibration check by someone who is not qualified to carry it out on the specific type of instrument involved is no evidence whatsoever that the instrument was properly calibrated.”
The decision of the adjudicator was quashed and a new hearing was ordered