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IRP Case Results – Lawyer Kyla Lee

Specifics of international private law.

Vancouver Lawyer Kyla Lee has been instrumental in the legal challenges to the 90-day Immediate Roadside Prohibition law. She revealed the Vancouver Photocopy Debacle. Read some of her Immediate Roadside Prohibition Case Results below.

IRP Case Results - Lawyer Kyla LeeRe: 3-MONTH IMMEDIATE ROADSIDE PROHIBITION (CLIENT 3701)

 

Lawyer: Kyla Lee

Client was issued a 90-day IRP for failing two ASD tests in Surrey.

 

CASE FACTS:

Client received a 90-day IRP after failing two Approved Screening Device tests in Surrey. The officer provided calibration records for the approved screening devices. Internal documents obtained by lawyer Kyla Lee showed the information regarding the calibration process was not reliable.

 

ARGUMENT:

The calibration check of the approved screening device was not done properly. It is not possible for the tribunal to be satisfied the approved screening devices were reliable. The tribunal could not choose the information provided by police without some basis to reject the information provided by the lawyer.

 

HELD: PROHIBITION LIFTED

The information in the Certificates of Qualified ASD Calibrator was not reliable. There was insufficient evidence that the ASD results were reliable.

 

PROHIBITION REVOKED

Re: 3-MONTH IMMEDIATE ROADSIDE PROHIBITION (CLIENT 3699)

 

Lawyer: Kyla Lee

Client was issued a 90-day IRP for failing an ASD test in Vancouver.

 

CASE FACTS:

Client received a 90-day IRP after failing an Approved Screening Device test in Vancouver. Lawyer Kyla Lee recognized an inconsistency in the calibration record provided when compared with other calibration records obtained in other cases.

 

ARGUMENT:

The Qualified ASD Calibrator was using expired calibration gas. The Calibrator had simply changed the expiry date once the canister expired. The evidence provided showed many cases where the date was expired.

 

HELD: PROHIBITION LIFTED

The information in the Certificates of Qualified ASD Calibrator was not reliable. There was insufficient evidence that the ASD results were reliable.

PROHIBITION REVOKED

Re: 3-MONTH IMMEDIATE ROADSIDE PROHIBITION (CLIENT 3698)

 

Lawyer: Kyla Lee

Client was issued a 90-day IRP for refusing to comply with a roadside screening device test.

 

CASE FACTS:

Client was stopped by police. The officer formed a suspicion there was alcohol in his body. The client was asked to blow into a roadside screening device. He refused to blow. The documents to support the prohibition were sworn on one day, but the Narrative describing the events was printed on a later date.

 

ARGUMENT:

The Narrative describing the events was not admissible. The officer committed perjury by swearing that a document existed when it did not. The tribunal was not entitled to consider this report. Absent this evidence, there was no evidence the client failed or refused to provide breath samples.

 

HELD: PROHIBITION LIFTED

The evidence was not admissible in the hearing. There was no evidence the client refused to comply with the demand.

 

PROHIBITION REVOKED

Re: 3-MONTH IMMEDIATE ROADSIDE PROHIBITION (CLIENT 3690)

 

Lawyer: Kyla Lee

Client was issued a 90-day IRP for failing to provide breath samples into a roadside breathalyzer.

 

CASE FACTS:

Client was stopped by police. The officer formed a suspicion there was alcohol in his body. The client was asked to blow into a roadside screening device. He tried to blow several times, but the device did not seem to be working. On review of the evidence, lawyer Kyla Lee noticed a defect in the operation and functioning of the approved screening device.

 

ARGUMENT:

The evidence could not be relied on to show the client intentionally refused to comply. The device was not functioning in a way that was consistent with a properly functioning approved screening device. The device was not operated properly. A qualified ASD operator ought to have known there was a defect.

 

HELD: PROHIBITION LIFTED

The device was not reasonably capable of accepting a sample. The malfunction meant that the client had not intentionally failed to blow.

PROHIBITION REVOKED

Re: 3-Month IRP for Blowing Fail twice (Client 3319)

 

Lawyer: Kyla Lee

Client was issued a 90-day IRP for failing two ASD tests in Vancouver.

 

CASE FACTS:

Client received a 90-day IRP after failing two Approved Screening Device tests in Vancouver. The officer provided a copy of the Report to Superintendent, but it was not sworn. The jurat was completed, but there was no signature on the Commissioner line. Several days later, the officer re-faxed the Report to Superintendent, dated for the original date, but with a signature on the Commissioner line. The signature was that of the officer in charge of calibration at the Vancouver Detachment.

 

ARGUMENT:

The Report to Superintendent is not properly sworn. There is no evidence the document was before the Commissioner on the date it purported to have been sworn. The Vancouver officer lacks credibility. Police do not enjoy a credibility advantage. On a balance of probabilities, it is more likely than not that the Commissioner added his signature on some later date, rather than the date indicated in the jurat.

 

HELD: PROHIBITION LIFTED

The officer acting as Commissioner lacked credibility. There was insufficient evidence that the Report was properly sworn.

 

PROHIBITION REVOKED

Re: 90-Day IRP Immediate Roadside Prohibition for “Fail” (Client 2601)

 

IRP Lawyer: Kyla Lee

Client was issued a 90-day IRP after failing two ASD tests in Vancouver.

 

CASE FACTS:

Client received a 90-day IRP after failing to Approved Screening Device tests in Vancouver. The officer provided two Certificates of Qualified ASD Calibrator. However, both Certificates were photocopied with only the serial number and service expiry dates of the device changed.

 

ARGUMENT:

The evidence of the calibration of the devices is unreliable. The officer’s evidence borders on fraud. There is no way to assess whether calibration was done properly or at all. The police must be held to a higher standard in producing evidence to support a prohibition.

 

CASE RESULTS: PROHIBITION LIFTED

There was no means by which the tribunal could assess the reliability of the device without a properly certified Certificate of Qualified ASD Calibrator.

 

PROHIBITION REVOKED

Re: 90-Day IRP Immediate Driving Prohibition for “Fail” (Client 2603)

 

IRP Lawyer: Kyla Lee

Client was issued a 90-day IRP after Blowing Fail on two ASD breathalyzers.

 

CASE FACTS:

Client was pulled over after witnesses reported an intoxicated person leaving a casino. The officer suspected he had been drinking and requested he provide a sample into an ASD. The result was a Fail. The client requested a second test, which also registered a Fail. The police report and the Report to Superintendent contained two different dates of driving.

 

ARGUMENT:

This is more complex than a common DUI. The onus is on the officer to justify the prohibition on a balance of probabilities. The conflicting evidence is unreliable and cannot be accepted. The evidence does not support the allegations and the prohibition must be revoked.

 

CASE RESULTS: PROHIBITION LIFTED

“I find that the officer has not provided sufficient evidence to support that the incident occurred on [the date on the Notice].” IRP REVOKED

Re: 90-Day IRP Immediate Driving Prohibition for “Fail” (Client 2585)

 

IRP Lawyer: Kyla Lee

Client was issued a 90-day IRP for failing one ASD test.

 

CASE FACTS:

Client received an IRP in May, 2011. She disputed her prohibition and lost. Case appealed to BCSC. Client retained lawyer Kyla Lee to handle her appeal. After reviewing submissions from Kyla Lee the Government agreed to a re-hearing. There was evidence that the client had been consuming alcohol only moments before the ASD test.

 

ARGUMENT:

A recent drink of alcohol can falsely elevate ASD results. The expert calculations placed the client’s BAC at less than 80 mg%. There was photographic evidence to support the fact that open liquor was in the vehicle and witness statements to confirm that the client had been drinking it.

 

CASE RESULTS: PROHIBITION LIFTED

The “Fail” result was caused by alcohol in the mouth and not alcohol in the body. IRP REVOKED

Re: 90-Day IRP Immediate Roadside Prohibition for “Fail” (Client 2597)

 

IRP Lawyer: Kyla Lee

Client was issued a 90-day IRP for failing two ASD tests.

 

CASE FACTS:

The client went through a roadblock in Port Moody after the fireworks display. A police officer detected an odor of liquor coming from the client’s breath and demanded that he provide a sample into an approved screening device. The result of the test was a “Fail” reading. The driver asked for a second test, which also registered a “Fail”.

Kyla Lee reviewed maintenance and calibration records from Port Moody Police Department pertaining to the approved screening devices used in this case. It was discovered that the service expiry dates for the devices were being changed to coincide with the calibration expiry on a monthly basis. There was no evidence of a reliable service expiry date.

 

ARGUMENT:

ASDs are serviced on an annual basis. The calibration is checked on a monthly basis. It is illogical and impossible for the service expiry date to change each month. The Superintendent cannot find that there is a reliable service expiry. Consequently the readings obtained on the device must be found to be unreliable.

 

CASE RESULTS: PROHIBITION LIFTED

“The evidence before me indicates that with respect to the ASDs used in your case, the ASD Calibrator changed the service expiry date to match the calibration expiry date for three consecutive months… [B]ecause of this I cannot be satisfied that the ASDs were serviced at the appropriate times, making the ASD results unreliable. IRP REVOKED

Re: 90-Day IRP Immediate Driving Prohibition for “Fail” (Client 2478)

 

IRP Lawyer: Kyla Lee

Client was issued a 90-day IRP for failing an approved screening device test.

 

CASE FACTS:

The client was pulled over for speeding. The officer asked him to exit the vehicle, noticed the open beer in the center console, and then demanded a roadside breath test. The result of the test was a “Fail” reading. In the Report to Superintendent, the officer recorded the time of last drink as 2 hours earlier. The client provided a sworn legal document confirming among other facts that he consumed alcohol moment before he was pulled over.

 

ARGUMENT:

The police officer was not entitled to rely on the ASD results in issuing the prohibition. The circumstances of the open alcohol in the car should have alerted the officer to the possibility that the subject may have recently consumed alcohol. It was incumbent on the officer in these circumstances to delay taking the test in order to allow for the dissipation of residual alcohol in the mouth. The “Fail” reading was not reliable.

 

CASE RESULTS: PROHIBITION LIFTED

“Your lawyer Kyla Lee has provided copies of several court decisions in support of her argument [that] because [the officer] had you provide a breath sample immediately after stopping your vehicle, although he was aware that it contained an open bottle of liquor, I cannot be satisfied that the ASD “FAIL” was accurate.
I concur.”

 

IRP REVOKED

Re: 90-Day IRP Immediate Roadside Prohibition (Client 2457)

 

IRP Lawyer: Kyla Lee

Client was issued a 90-day IRP for failing two approved screening device tests.

 

CASE FACTS:

The client was pulled over after he was observed driving his vehicle. The police officer made an ASD demand. The client provided a sample, resulting in a Fail reading. A second test was conducted, which also registered “Fail.” Issued a 90-day IRP for Fail.

 

ARGUMENT:

The first test was conducted on an expired device. There is a significant power imbalance at the roadside. Subjects do not know whether the device is properly calibrated at the time they blow. The purpose of the second test is to allow a person to prove their innocence and not to gather evidence to impeach the client. By taking a test on a device that was expired, the police officer did not properly conduct a first test. Since the first test could not be considered, no second test was provided.

 

CASE RESULTS: PROHIBITION LIFTED

“I cannot be satisfied that the ‘FAIL’ result was reliable because the ASD calibration [concerns].

 

IRP REVOKED

Re: 90-Day IRP Immediate Driving Prohibition (Client 2432)

 

IRP Lawyer: Kyla Lee

Client blew Fail into an ASD approved screening device and was issued a 90-day IRP.

 

CASE FACTS:

The client was pulled over for speeding. He had been drinking a beer while driving. The officer asked him to exit the vehicle, noticed the open beer in the center console, and then demanded a roadside breath test. The result of the test was a “Fail” reading. In the Report to Superintendent, the officer recorded the time of last drink as 2 hours earlier. This evidence was not in the police narrative. The client provided an Affidavit stating that his last drink had been only seconds before he was pulled over and that he did not tell the officer his last drink was 2 hours earlier.

 

ARGUMENT:

The police officer was not entitled to rely on the ASD results in issuing the prohibition. The circumstances of the open beer in the car should have alerted the officer to the fact that the subject may have been recently consuming alcohol. It was incumbent on the officer in these circumstances to delay taking the test in order to allow for the dissipation of residual alcohol in the mouth. The “Fail” reading was not reliable.

 

CASE RESULTS: PROHIBITION LIFTED

“Because [the officer] had you provide a breath sample immediately after stopping your vehicle, although he was aware that it contained an open bottle of liquor, I cannot be satisfied that the ASD “FAIL” was reliable.”

 

IRP REVOKED

Re: 90-Day IRP Immediate Driving Prohibition for Fail (Client 2396)

 

IRP Lawyer: Kyla Lee

Client was issued a 90-day IRP for failing two consecutive Approved Screening Device tests.

 

CASE FACTS:

The client was pulled over at a roadblock. The police officer made an ASD demand. The client provided a sample, resulting in a fail reading. A second test was conducted, which also registered “Fail.” The client was issued a 90-day IRP for Fail. The officer submitted documents to the Superintendent to support the 90-day Immediate Roadside Prohibition.

 

ARGUMENT:

There was insufficient evidence before the tribunal to conclude that the devices used were reliable. Calibration records in the form of Certificates of Qualified ASD Calibrator have not been disclosed. It is impossible for the tribunal to conclude that the readings were proper and reliable.

 

CASE RESULTS: PROHIBITION LIFTED

There was no information to prove the devices were in proper working order at the time of the tests. The Fail readings were not reliable.

 

PROHIBITION REVOKED

Re: 90-Day IRP Immediate Driving Prohibition for Fail (Client 2389)

 

IRP Lawyer: Kyla Lee

Client was issued a 90-day IRP. A review hearing was conducted and the client was unsuccessful. Decision of the Superintendent of Motor Vehicles appealed to Supreme Court.

 

CASE FACTS:

The client was pulled over after he was alleged to have been in a bar fight. The police officer made an ASD demand and after several attempts, the client was unable to provide a sample. Issued a 90-day IRP for refusal. In the review hearing, it was argued that the client’s rights under sections 8, 9, and 10(b) of the Charter were breached. The adjudicator dismissed this argument stating that it did not have jurisdiction to consider the Charter in IRP review hearings. The decision was appealed to Supreme Court.

 

ARGUMENT:

The Charter is the supreme law of the country. Administrative tribunals capable of deciding legal issues should also decide Charter questions that arise before them. The Charter applies equally to administrative tribunals and courts. If the Superintendent cannot consider Charter issues, individuals are prevented from obtaining Charter remedies in their cases. This is inconsistent with the purpose of the Charter.

 

CASE RESULTS: PROHIBITION LIFTED

The lawyers for the government agreed that the decision of the adjudicator was incorrect. The case was sent back to the Superintendent’s office for a re-hearing. NEW HEARING GRANTED and PROHIBITION REVOKED

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