Re: 3-Month ADP Administrative Driving Prohibition (Client 2964)

ADP Lawyers: Paul Doroshenko and Kyla Lee

Client was issued a 90-day ADP. A review hearing was conducted by another lawyer and the client was unsuccessful.

CASE FACTS:

The Report to RoadSafetyBC contained a defective document. The Superintendent’s office instructed the police officer to change the evidence prior to the hearing. A review hearing was conducted by another law firm using the amended document. The client lost the new review hearing.

Paul Doroshenko and Kyla Lee were retained to review the file and subsequently write to the Attorney General explaining the problem and requesting a new hearing.

ARGUMENT:

The RoadSafetyBC tribunal is supposed to be an independent tribunal. This means that they are not permitted to perform investigative functions. To review evidence for errors or omissions and contact the police requesting them to amend these errors or omissions prior to a hearing constitutes investigative work. In requesting the amendment and relying on the amended document in rendering its decision, the adjudicator gave the appearance of bias.

CASE RESULTS: NEW HEARING ORDERED

Government lawyers agreed that the actions of the Superintendent’s office gave rise to a reasonable apprehension of bias.

PROHIBITION CANCELLED

Re: 90-Day ADP Administrative Driving Prohibition (Client 2957)

ADP Lawyers: Paul Doroshenko and Kyla Lee

Client was served a 90-day ADP after allegedly providing samples into a breathalyzer that showed her blood alcohol content was in excess of 80mg%.

CASE FACTS:

Client blew into a breathalyzer and the readings were in excess of 80mg%. The police completed the typical documents, but they did not comply with the requirements of the Criminal Code. The Superintendent’s office noticed the mistake and wrote to the officer asking that he correct the error in the documents.

ARGUMENT:

It was inappropriate for the Superintendent’s office to act in the capacity of investigator and prosecutor. The RoadSafetyBC tribunal is supposed to be an independent tribunal that may only review the evidence and decide the case based on what is before it. An appearance of bias arises if the RoadSafetyBC tribunal is acting as investigator, prosecutor and decision maker. As the document did not comply with the Criminal Code requirements, they were not entitled to consider it. Absent evidence of the document, the readings alleged by the officer could not be considered reliable.

CASE RESULTS: PROHIBITION CANCELLED

“There is a duty to obtain required documentary evidence from the police, but there is no basis for undertaking a review of the evidence prior to a hearing and suggesting changes or amendments be made to it. The amended document is therefore disregarded and will not be considered as police evidence before me. There is no other analysis of your BAC that can support a suspension.”

PROHIBITION CANCELLED

Re: 3-Month ADP Administrative Driving Prohibition (Client 3007)

ADP Lawyer: Kyla Lee

Client was issued a 90-day ADP after providing samples of breath that registered in excess of 80 mg%.

CASE FACTS:

The client was located with her vehicle in a ditch. She blew Fail into an ASD roadside and was taken back to the detachment for further breath testing. At the detachment, she blew over the legal limit and was issued a 90-day ADP driving prohibition.

ARGUMENT:

There Is no reliable evidence before the tribunal to indicate that the breath samples were taken within 3 hours of the time of driving. The officer failed to record any information about the time of the samples and although his report indicated the Certificate of Qualified Technician was attached, it was not.

CASE RESULTS: PROHIBITION LIFTED

There was no evidence on which to confirm the readings were taken within the required time limit.

PROHIBITION CANCELLED

Re: 90-Day ADP Review (Client 2943)

Lawyer: Paul C. Doroshenko

Client was served a 90-day ADP after allegedly refusing to blow into a BAC Datamaster C.

CASE FACTS:

The client was pulled over by a peace officer who formed reasonable and probable grounds to believe the client was impaired by alcohol. 17 minutes later, the officer demanded that the client accompany him to the detachment to provide a sample on the breathalyzer.

ARGUMENT:

The Criminal Code requires that a demand for a sample of breath be made “as soon as practicable.” There was no explanation why the demand was not made until 17 minutes after the time of driving. Since there was no explanation for the delay, the demand was not made in compliance with the provisions of the Code.

CASE RESULTS: PROHIBITION LIFTED

The adjudicator agreed that there was nothing in the evidence to explain the delay. The demand was not lawful and the prohibition must therefore be revoked.

PROHIBITION REVOKED

Re: 90-Day ADP Review (Client 2781)

Lawyer: Paul C. Doroshenko

Client issued a Notice of Driving Prohibition by the police. A review was conducted before the RoadSafetyBC tribunal.

CASE FACTS:

Richmond RCMP pull over client after witnessing client swerve through intersection. A roadside screening test was performed with a “fail” result. The client was arrested and provided samples of breath indicating a blood/alcohol content of 170 mg per 100 ml of blood.

Argument:

“Your lawyer, Mr. Doroshenko, submits that without knowing the Times of the results there is no evidence if your results were 15 minutes apart and he questions the reliability and accuracy of the samples referred to by the officer. He also states that just because 4 samples were taken is no reason not to produce a Certificate of Analysis. Mr. Doroshenko also states there is no evidence of why or what a manual override is. He submits the officer failed to provide an explanation of what it is and why he felt it necessary to use it. As well, Mr. Doroshenko submits that you blew a total of six times and there is no explanation regarding the extra blows or why it was necessary. He questions the reliability of the results given that you displayed little or no indicia and admitted to having only one beer.”

CASE RESULTS: Prohibition Lifted

“I find no conclusive evidence to rely on with regard to the time of your breath test result. I am not satisfied on the evidence before me that your BAC (Blood/alcohol concentration) exceeded 80 ms% within three hours of driving.” Prohibition Revoked and fees refunded

Re: 90-Day ADP Review (Client 2766)

Lawyer: Paul C. Doroshenko

Client issued a Notice of Driving Prohibition by the Surrey RCMP. A review was conducted before the RoadSafetyBC tribunal.

CASE FACTS:

Following a collision, RCMP attend, and demand a breath sample from the driver for the presence of alcohol. The driver refused to provide a breath sample.

ARGUMENT:

“In his sworn Report to the Superintendent the police officer states that you were read your Charter rights, given the official warning but that you refused to provide breath samples. The Demand(s) for Sample(s) table on page 2 of the officer’s Report records a refusal, but the Time of Demand and Time of Refusal are blank, with only the Time of Result filed in as 00:28 hours”.

CASE RESULTS: PROHIBITION LIFTED

“Your lawyer, Mr. Paul Doroshenko, argues that evidentiary standards have not been met in that grid has not been completed and that there is no date or time of a demand recorded. I agree with him and therefore, I am not satisfied that there is sufficient evidence to show me that a demand for your to provide a breath or blood sample was actually made.” PROHIBITION REVOKE

Re: 90-Day ADP Review (Client 2685)

Lawyer: Paul C. Doroshenko

Langley RCMP issued client a notice of 90-day driving prohibition. A review was conducted by Mr. Doroshenko before the RoadSafetyBC tribunal.

CASE FACTS:

After driving through a stop sign, client pulled over by the Langley RCMP and arrested for impaired driving. Breath samples obtained indicating a blood alcohol content of 150 mg in 100 ml.

ARGUMENT:

During your hearing your lawyer, Paul Doroshenko pointed out that the times in the officer’s report do not make sense. He noted that the office recorded your time of driving as 12:56 a.m. but reported that he issued a breath demand to you at 12:05 a.m. and that you consulted with legal counsel at 12:35 a.m.

CASE RESULTS: PROHIBITION LIFTED

Since the timing of the events as reported by Constable Grewal do not make sense, Mr. Doroshenko states that I cannot be satisfied that you operated or had care or control of a motor vehicle at 12:56 a.m. that evening and I agree. PROHIBITION REVOKED

Re: 90-Day ADP Review (Client 2672)

Lawyer: Paul C. Doroshenko

Client issued a 90-day ADP driving prohibition for having refused to provide a breath sample to the Surrey RCMP.

CASE FACTS:

Following a collision at an intersection in Surrey, the client, who drives for a living, was arrested and presented to the breathalyzer. She refused to provide a breath sample because she was not given a reasonable opportunity to speak with a lawyer.

ARGUMENT:

Mr. Doroshenko pointed my attention to three cases R. v. Kowalchuk, R. v. Allison and R. v. Clancy. In Kowalchuk, a Saskatchewan case, Mr. Justice Matheson held that a constable denied the accused his right to counsel, because the constable called Legal Aid when the man said he wanted a lawyer, and never asked the accused which lawyer he wanted. In Allison, Mr. Justice Long refereed to R.v. Kerr, an unreported decision in which Mr. Justice Bruce held that the police pre-empted the accused’s right to counsel by waiting only 2 to 4 minutes after he left a message with his lawyer, then calling Legal Aid on his behalf without telling him that he could call his lawyer again, or any other lawyer, or asking if he wished to speak to Legal Aid. In Clancy, an Ontario case, Mr. Justice Long Held that the onus upon the Crown to show a waiver of a right is very high. As the accused in this case consistently asked for a specific lawyer, Mr. Justice Long held that he had not waived his right to a lawyer.

Mr. Doroshenko pointed my attention to the fact that there is no mention in Constable Moar’s notes of giving you the supplementary Charter warning, which is required when an accused first chooses to exercise, and then waives , their right to counsel.

CASE RESULTS: PROHIBITION LIFTED

Based on the evidence before me, I am satisfied that it is more likely than not that you were denied a reasonable opportunity to contact the counsel of your choice.

PROHIBITION REVOKED

Re: 90-Day ADP Review (Client 2603)

Lawyer: Paul C. Doroshenko

CASE FACTS:

After being stopped for unusual driving, the police made a breath demand and deemed the client’s behavior as constituting a refusal of the breath demand.

ARGUMENT:

Your lawyer argued that you were entitled to refuse the demand, because it was not lawful. He argued that the ASD demand was not lawful because it was made 10 minutes after the time of driving (indicated on page 1 of the Report as 2:40 a.m.) He pointed my attention to R. v. Cleaver, in which Mr. Justice Dhillon stated that the detention of a driver by the police for 8 to 11 minutes before an ASD demand was made was contrary to the Charter of Rights and Freedoms. Mr. Justice ruled that the ASD result could not be relied on, and could not form the basis for reasonable and probable grounds to demand a breathalyzer test. I acknowledge that I am bound by this decision.

CASE RESULTS: PROHIBITION LIFTED

Based on the evidence before me, I cannot be satisfied that a lawful demand was made. I therefore find that it is more likely than not that you did not fail or refuse to comply with a demand.
PROHIBITION REVOKED

Re: Administrative Driving Prohibition Review (Client 2513)

Lawyer: Paul C. Doroshenko

Richmond RCMP issued the client a notice of 90-day driving prohibition after obtaining breath samples indicating the driver was over .08. A review was conducted by Mr. Doroshenko before the RoadSafetyBC tribunal.

CASE FACTS:

After rear ending a car that was stopped at a red light, the client drove from the scene until colliding with a post. He was arrested for impaired driving. Breath samples indicated a blood-alcohol content of 170 mg in 100 ml.

ARGUMENT:

Lawyer Paul Doroshenko argued that the report is illogical. The Constable marked the time of driving at 22:27 hours. He stated that he read the Approved Screening Device demand at 22:22 hours.

CASE RESULTS: PROHIBITION LIFTED

Nowhere else in the report is the time of driving recorded. Consequently, I do not find I have a reliable time of driving. Therefore I am not satisfied that you had care and control of a motor vehicle.
PROHIBITION REVOKED

Re: 90-Day ADP Review (Client 2482)

Lawyer: Paul C. Doroshenko

Vancouver police issued client a notice of 90-day driving prohibition after a collision and criminal investigation. Mr. Doroshenko conducted the review.

CASE FACTS:

The client’s vehicle hit the rear bumper of a vehicle stopped in traffic. Vancouver police attended and arrested the client. At the police station, the client refused to provide a breath sample.

ARGUMENT:

Your lawyer argued that there is no evidence in the police report that a demand existed under section 254 of the Criminal Code. He stated that there is some indication that you were asked a question, however, it is not in the form of a proper demand. Further, he argued that there is no evidence of which demand would have been made, or even a time of the demand.

CASE RESULTS: PROHIBITION LIFTED

I agree with your lawyer. PROHIBITION REVOKED

Re: 90-Day ADP Review (Client 2443)

Lawyer: Paul C. Doroshenko

Vancouver Police issued client the second notice of 90-day driving prohibition in a year. Vancouver Driving Lawyer Paul Doroshenko disputed the prohibition before the RoadSafetyBC tribunal.

CASE FACTS:

At 11:51 p.m. the client is observed in her Audi driving slowly and weaving. She was arrested for impaired driving and she refused to provide a breath sample.

ARGUMENT:

Your lawyer, Paul Doroshenko, states that the officer’s sworn report indicates that the time of driving was 11:51 and the ASD demand was at 11:58. He states that the breath demand in the officer’s report is at 13:18, which is one hour after he formed his reasonable and probable grounds. Mr. Doroshenko submits that you were entitled to refuse the demand.

CASE RESULTS: PROHIBITION LIFTED

I am satisfied that you did not fail or refuse to comply with the officer’s breath demand.
PROHIBITION REVOKED

Re: 90-Administrative Driving Prohibition Review (Client 2432)

Lawyer: Paul C. Doroshenko

Vancouver Police arrest the client after he struck a pedestrian. He was issued a notice of Administrative Driving Prohibition. Paul Doroshenko disputed the prohibition and conducted the hearing.

CASE FACTS:

Police arrest the client after he struck a pedestrian while driving on Cambie Street in Vancouver. After providing breath samples of 130 mg% and 120 mg% he was charged with impaired driving and issued a 90-day ADP driving prohibition.

ARGUMENT:

Your lawyer, Paul Doroshenko, pointed out that there is no specific evidence as to whether you consumed any alcohol between the time of the accident and the time of the police arriving on scene. Your lawyer suggested there was evidence that you may have consumed some beer after the accident occurred.

CASE RESULTS: PROHIBITION LIFTED

I find that there was a possibility that you drank some beer after the accident, which might account for the substantial amount of your BAC reading. PROHIBITION REVOKED

Re: 90-Administrative Prohibition (Client 2360)

Lawyer: Paul Doroshenko

Whistler, B.C. RCMP issued a Notice of Driving Prohibition (ADP). Mr. Doroshenko conducted the review.

CASE FACTS:

Following a civilian complaint, Whistler RCMP attend an accident scene where the client has allegedly driven into a pole. Breath samples indicate 160 mg per 100 ml of blood.

ARGUMENT:

Your lawyer, Paul C. Doroshenko submitted there is no evidence of when you operated or had care or control of a motor vehicle. He submitted that the officer’s report only indicates that he arrived on the scene at 1:30 p.m. There is no evidence of when the accident actually occurred. The report indicates that you explained how you crashed your vehicle and that a witness pointed you out as the driver.

CASE RESULTS: PROHIBITION LIFTED

I agree with your lawyer, that there is no evidence of when you were driving or in care or control of the vehicle. The Report indicates that the officer arrived on scene at 1:30 p.m. However he did not provide any evidence of the time of driving. Without a time of driving or care or control, I am unable to determine if your blood alcohol concentration exceeded 80 mg % within three hours of your operation or care or control of a motor vehicle.
PROHIBITION REVOKED

Re: 90-Day ADP Prohibition (Client 2257)

Lawyer: Paul Doroshenko

Client issued a Notice of Driving Prohibition by the police. A review was conducted before the RoadSafetyBC tribunal.

CASE FACTS:

Richmond RCMP follow client for 2 blocks before pulling him over. Following an admission of having consumed 2 beers, the officer demands a breath sample to an approved screening device. The client refuses to blow.

ARGUMENT:

“Your lawyer, Mr. Doroshenko, submitted that in the Report to Superintendent the officer has failed to incorporate the narrative, contrary to the rule in Matous v. Superintendent of Motor Vehicles. Alternatively, Mr. Doroshenko has provided me with R. V. Smith with respect to the issue of whether the officer had sufficient evidence to form the suspicion that you had alcohol in your body.”

CASE RESULTS: PROHIBITION LIFTED

“In the decision of Matous v. Superintendent of Motor Vehicles et al 2003 BCSC 1531 Madame Justice Morrison held that an unsworn narrative ought not to be considered as other relevant information, even when giving it less weight. In the circumstances where there is not indication in the sworn report that the contents of any additional Report are incorporated, the adjudicator cannot consider the information. Therefore I cannot consider the contents of the narrative.” Prohibition Revoked and fees refunded.

Re: 90-Day IRP Immediate Driving Prohibition (Client 2361)

Driving Lawyer: Paul C. Doroshenko

Client detained in a Boston Pizza parking lot at 12:45 a.m. RCMP obtain a “fail” sample on an Approved Screening Device and issue a 90-day IRP. A review was conducted before the RoadSafetyBC tribunal.

CASE FACTS:

The client was observed in the driver’s seat of his vehicle with the headlights and brake-lights on. The Surrey RCMP Corporal observed the client earlier in the evening drinking in the restaurant. The Corporal reported that the client tried to hide when he drove by in his cruiser. A strong odour of liquor was noted noted on the client’s breath and he admitted consuming alcohol. A “fail” sample was obtained on the ASD. The client’s truck was impounded for 30 days and he was issued a 90-day IRP by the Corporal.

ARGUMENT:

“In your oral submissions you provided context to the facts presented by the corporal. Your lawyer, Paul Doroshenko, provided a court case, R. v. Sedora, in which the court addressed what constitutes care and control of a motor vehicle.”

HELD: PROHIBITION LIFTED

“Given the evidence, I find that on a balance of probabilities you did not have care and control. I revoke your driving prohibition and monetary penalty. You may resume driving. Your vehicle impound is revoked. The RoadSafetyBC will pay for towing and the impound.”

PROHIBITION REVOKED AND VEHICLE RETURNED