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Immediate Roadside Prohibition Case Results (IRP)

We vigorously defend IRPs for our clients, and we succeed in more IRP appeals than any other law firm in BC. We are bringing new court challenges to the 90-day Immediate Roadside Prohibition law. We contest all IRPs when we can succeed for our clients. Please read some of our Immediate Roadside Prohibition Case Results below.

Re: 90-Days IRP Immediate Roadside Prohibition for Refusal (Client 2342)

 

Lawyer: Paul C. Doroshenko
Client pulled over driving from a pub at closing time. RCMP demand a breath sample to an Approved Screening Device. RCMP allege that the client refused to blow. A review was conducted before the RoadSafetyBC tribunal.

CASE FACTS:
The driver is stopped driving a vehicle that is observed driving strangely at the exit of a pub’s parking lot. RCMP observe a distinct odour of liquor from the vehicle and the driver admits to consuming alcohol earlier. A demand for a breath sample is made. After 8 attempts, the driver is deemed to have refused the sample.

ARGUMENT:
“Your lawyer, Paul Doroshenko, provided several court cases in which the court addresses the need for an officer to form a reasonable suspicion to make a demand. Mr. Doroshenko noted that the odour of liquor came only from your vehicle in which there were four passengers. Mr. Doroshenko also provided a letter from a forensic expert who explained that, based on the consumption [pattern] you would not have any alcohol in your body.”

CASE RESULTS: PROHIBITION LIFTED
“I am not satisfied that you failed or refused to comply with a valid demand. I therefore revoke your driving prohibition and monetary penalty. Your vehicle impound is revoked. The Superintendent will pay for towing and storage.”
PROHIBITION REVOKED AND VEHICLE RETURNED

Re: 90 Day IRP Immediate Roadside Prohibition (Client 2514)

 

IRP Lawyer: Sarah Leamon
Client received a 90-day Immediate Roadside Prohibition after providing two breath samples using Approved Screening Devices, both of which registered as ‘Fail’ readings.

CASE FACTS:
The client was stopped by police and questioned about alcohol consumption. Client admitted to consuming alcohol. A breath demand was issued and client provided a sample of breath that registered as a ‘fail.’ Client was informed of right to a second breath test and opted to provide second breath sample. Second breath sample also registered as a ‘fail.’ Client was issued a 90-day Immediate Roadside Prohibition.

ARGUMENT:
Report to RoadSafetyBC was sworn by the investigating officer’s partner, not the investigating officer. As a result, we cannot consider any evidence provided by the officer.

CASE RESULTS: PROHIBITION LIFTED
“Since the Report to Superintendent was not sworn properly by the officer who prepared the report, I cannot consider it. The Report to Superintendent refers to 9 pages which “forms part of this sworn document.” I find that I cannot consider any of these 9 pages. That being the case, there is insufficient evidence before me to support the allegations that form the basis of this prohibition.” IRP REVOKED

Re: 90-Day IRP Immediate Roadside 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 centre 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
“Ms. 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 2461)

 

IRP Lawyer: Sarah Leamon
Client received a 90-day Immediate Roadside Prohibition after providing two breath samples using Approved Screening Devices, both of which registered as ‘Fail’ readings.

CASE FACTS:
The client was stopped by police. Client admitted to consuming alcohol prior to operating the motor vehicle. A breath demand was issued and client provided a sample of breath that registered as a Fail. Client was informed of right to a second breath test and opted to provide second breath sample. Client provided second breath sample, with some difficulty, using a different device. That sample also registered as a Fail. Client was issued a 90-day Immediate Roadside Prohibition. Upon reviewing police report, Sarah determined that the police officer recorded certain information with respect to the second device that indicated the device was not functioning correctly.

ARGUMENT:
By the officers own evidence, the device cannot be said to be functioning properly. Therefore, the client’s second breath sample is unreliable and the client was not provided an adequate opportunity to conduct a second breath test on a reliable device.

CASE RESULTS: PROHIBITION LIFTED
“Ms. Leamon made submissions with respect to the reliability of the ASD the officer used for the second test in your case. Having reviewed the evidence, I am not satisfied the ASD was reliable. In turn I am not satisfied that the officer provided you an adequate opportunity for a second sample. As a result, I revoked your driving prohibition, monetary penalty and vehicle impoundment.” IRP REVOKED

Re: 90-Day 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 Immediate Roadside Prohibition (Client 2442)

 

IRP Lawyer: Sarah Leamon
Client received a 90-day Immediate Roadside Prohibition after providing a breath sample using an Approved Screening Device that registered Fail.

CASE FACTS:
The client was stopped by police. Client admitted to consuming alcohol prior to operating the motor vehicle. A breathalyzer demand was issued and the client provided a sample of breath that registered Fail. Client was informed of right to a second breath test and opted to provide second breath sample. However, client failed to provide breath sample after multiple attempts. Client was issued a 90-day Immediate Roadside Prohibition for failing or refusing to provide a breath sample.

ARGUMENT:
There was no evidence that the client failed or refused to provide a breath sample. The second breath sample was voluntary. A failure to provide a second breath sample does not constitute a refusal at the roadside.

CASE RESULTS: PROHIBITION LIFTED
“I note that the charge indicated on the Notice was for failing to comply with a demand to provide a sample of breath for analysis by an ASD. The Report to Superintendent [indicates] that you complied with the demand and provided a breath sample. The officer submitted no persuasive evidence of a failure or refusal to comply with a demand. Accordingly, I do not find that you failed to comply with a demand.” IRP REVOKED

Re: 90-Day Immediate Roadside Prohibition for Refusal (Client 2512)

 

IRP 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 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 Immediate Roadside Prohibition for Refusal (Client 2428)

 

IRP Lawyer: Sarah Leamon
Client encountered by police officer after being reported as a possible impaired driver. Officer demanded a breath sample into an Approved Screening Device. Client refused to provide a sample. A review was conducted before the RoadSafetyBC tribunal.

CASE FACTS:
The driver became lost in a residential construction zone and encountered some construction workers. The driver exited the vehicle and became involved in a verbal altercation. The driver was reported to police as being possibly impaired. Police attended the scene but could not detect an odor of liquor coming from the driver. No other indicia of impairment were noted. When questioned, the driver denied consuming alcohol earlier. A demand for a breath sample was made. The driver outright refused to comply with the demand.

ARGUMENT:
“Your lawyer argues that the demand was not reasonable and has referred me to case law in support. I concur regarding the validity of the demand. I note that the officer did not witness any of the dangerous driving behavior that was reported by the construction workers. Moreover, the officer did not conclusively smell alcohol on you, nor did he note that he detected any of the symptoms consistent with alcohol consumption.”

CASE RESULTS: PROHIBITION LIFTED
“I am not satisfied that you failed or refused to comply with a demand made under the Criminal Code to provide a sample of breath for analysis by means of an ASD. I therefore revoke your driving prohibition, monetary penalty and vehicle impoundment as required by the Act.” PROHIBITION REVOKED

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

 

IRP Lawyer: Sarah Leamon
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 RoadSafetyBC 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: 3-Day IRP Immediate Roadside Prohibition for Warn (Client 2303)

 

IRP Lawyer: Sarah Leamon
Client encountered a police roadblock. Police officer made a breath demand using an Approved Screening Device. Client provided a breath sample resulting in a ‘Warn.’ A review was conducted before the RoadSafetyBC tribunal.

CASE FACTS:
The driver encountered a police roadblock after leaving a party on New Years Eve. When questioned, the driver admitted to consuming alcoholic drinks earlier in the evening. The driver was asked to provide a breath sample using an Approved Screening device. The driver complied and the sample registered as a ‘Warn.’ The driver asked for another breath test but was not given one. The driver was subsequently issued a 3-day Immediate Roadside Prohibition.

ARGUMENT:
“Your evidence is that after the officer handed you papers, you expressed your surprise over the result. You asked him if there was anything else you could do, and if you could take another test. He advised that there was nothing else you could do. Having carefully considered the evidence, I find that you asked for but were not given a second test.”

CASE RESULTS: PROHIBITION REMOVED FROM DRIVING RECORD
“I am not satisfied that an ASD did register a ‘warn.’ I therefore revoke your driving prohibition, monetary penalty and vehicle impoundment.” PROHIBITION REVOKED

Re: 90-Day IRP Immediate Roadside Prohibition for Refusal (Client 2512)

 

IRP Lawyer: Kyla Lee
Client was issued a 90-day IRP for blowing fail one time.

CASE FACTS:
Client received an IRP after being pulled over. The officer who issued the IRP had recently been disciplined for another investigation involving the client. The officer had been following the client through town since being disciplined. After failing the test, the officer did not offer the driver a second test. The police report indicated the driver was offered a second test and declined it.

Lawyer Kyla Lee obtained disclosure from the previous investigation. The disclosure revealed that the exact same phrases were used in the two reports. The officer had copied and pasted from the previous encounter.

ARGUMENT:
The officer was motivated to lie. The evidence established that he had fabricated the interaction regarding the second test. The evidence of the officer could not be found reliable in the circumstances.

CASE RESULTS: PROHIBITION LIFTED
The tribunal accepted the evidence of the client and agreed that the officer’s evidence did not support the fact that a second test was offered. PROHIBITION REVOKED

Re: 3-Day IRP Immediate Roadside Prohibition for Warn (Client 2393)

 

IRP Lawyer: Sarah Leamon
Client was stopped by police while operating motor vehicle. Police officer made a breath demand using an Approved Screening Device. Client provided a breath sample resulting in a ‘Warn.’ A review was conducted before the Superintendent of Motor Vehicles RoadSafetyBC tribunal.

CASE FACTS:
The driver was stopped by a police officer while driving. When questioned, the driver admitted to consuming alcoholic drinks earlier in the evening. The driver was asked to provide a breath sample using an ASD. The driver complied and the sample registered as a ‘Warn’ indicating a BAC above 50 mg% but under the Criminal threshold. The driver was then issued with an Immediate Roadside Prohibition for 3-days.

ARGUMENT:
“Ms. Leamon pointed out that the ASD used by the officer indicated the calibration expiry date is well beyond 30 days and therefore the test result cannot be accepted as reliable.”

CASE RESULTS: PROHIBITION REMOVED FROM DRIVING RECORD
“I concur that the ASD result is unreliable. Therefore, based on the evidence before me, I am not satisfied that the ASD registered a ‘warn.’” PROHIBITION REVOKED

Re: 90-Day IRP Immediate Roadside Prohibition (Client 2237)

 

RP Lawyer: Paul Doroshenko
Client was pulled over after executing an improper turn. Police demand a breath sample into an Approved Screening Device. A review was conducted before the Superintendent of Motor Vehicles.

CASE FACTS:
The driver is stopped after police witness the vehicle making an improper left turn. In the process of issuing a violation ticket, an odor of alcohol is detected on the driver. A demand for breath sample is made. That sample registered “fail”. The driver is told that he would face administrative consequences. The driver is then asked if he would like to provide a second breath sample, which he declined. A few moments later, the driver requested a second test. Police said it was too late.

ARGUMENT:
“Section 215.42(1) states that if an analysis of the breath of a person by means of an approved screening device under section 215.41(3) registers a warn or a fail, a second analysis must be performed if, after a peace officer serves on the person a notice of driving prohibition under section 215.41(3)(d), the person forthwith requests a second analysis.”

CASE RESULTS: PROHIBITION LIFTED
“Based on the evidence before me, I am satisfied that you requested a second ASD test after you were served the notice of driving prohibition and were not given one. Consequently there was no result on a second test for me to consider and I am unable to make a finding as to whether an ASD registered a fail.” PROHIBITION REVOKED

Re: 90-Day IRP Immediate Roadside Prohibition for Refusal (Client 2609)

 

IRP Lawyer: Kyla Lee
Client was issued a 90-day IRP for blowing Fail on two ASDs.

CASE FACTS:
Client received an IRP after being pulled over. Both tests resulted in a Fail reading. The police sent in the Certificates of Qualified ASD Calibrator to show the devices were properly calibrated. However, the ASD Accuracy Check Logs revealed that the first device was found to be out of calibration and then never recalibrated. Subsequent calibration checks revealed it was functioning perfectly.

ARGUMENT:
The reliability of the Certificates were undermined by the Accuracy Check Logs. The Logs indicated that the device was never recalibrated when it was required. It was unusual and highly suspect that the device would then start giving perfect readings. The devices could not be found to be reliable in the circumstances.

CASE RESULTS: PROHIBITION LIFTED
The tribunal could not be satisfied, given the records provided, that the approved screening device was reliable. PROHIBITION REVOKED

Re: 90-Day IRP Immediate Roadside Prohibition (Client 2212)

 

IRP Lawyer: Sarah Leamon
Client was issued a notice of 90-day driving prohibition after registering a FAIL on a roadside breath testing device (ASD). A review was conducted by Ms. Leamon before the Superintendent of Motor Vehicles.

CASE FACTS:
Client was pulled over by an officer in Burnaby after being observed speeding in front of an unmarked police vehicle. The officer made a breath demand and the client provided one breath sample using a roadside breath testing device (ASD). That sample registered “fail“.

ARGUMENT:
The evidence does not establish that an ASD was used, despite the officer stating in his report that he used an Alco-Sensor IV.

CASE RESULTS: PROHIBITION REVOKED
“Having reviewed your lawyer’s submissions and the report by the officer, I am unable to determine that the officer used an ASD to obtain your breath sample. I am satisfied that an ASD did not register a fail.” PROHIBITION REVOKED

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