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Challenging a ‘failure to provide a breath sample’ IRP

Challenging a ‘failure to provide a breath sample’ IRP

If you are pulled over by a police officer or one approaches you immediately after driving, you must comply with any demand for a sample of breath. It is in your best interest to do so because there are defences available to you if you provide a sample but virtually none if you refuse. But what about if you comply and find yourself accused of failing to provide a valid sample?

You could find yourself with a 90-day Immediate Roadside Prohibition (IRP), facing the prospect of not being able to drive for three months. This can cause irreparable harm to your life if you need to drive for work, transport your children around or have virtually any other commitment you need to get to.

The Motor Vehicle Act (MVA)states a police officer may take possession of your licence for failing to provide a sample of breath for analysis by an approved screening device (ASD). If this happens you commit an offence identical in the eyes of the law to refusing a breath demand.

If you appeal your IRP and a Superintendent of Motor Vehicles adjudicator upholds the driving suspension, you are entitled to seek a judicial review. Proving you did not intentionally fail to provide a breath sample can be difficult but fortunately, there are provisions in the law that can help you overturn the adjudicator’s decision.

“This may seem like a herculean task but there are circumstances where adjudicators get it wrong.”

Challenging a failure to provide a breath sample IRP

If the Superintendent of Motor Vehicles dismisses your appeal against an IRP for allegedly failing to provide a sample of breath, you can challenge the adjudicator’s decision. Doing so, however, is an uphill battle. The MVA stipulates that the burden of proof in a review of a driving prohibition is on the person on whom the prohibition was issued. This means it’s up to the person making the appeal to prove their innocence, unlike criminal trials where it’s the Crown’s responsibility to prove a defendant is guilty.

This may seem like a herculean task but there are circumstances where adjudicators get it wrong. In a recent case, Acumen Law Corporation lawyers successfully challenged an adjudicator’s decision on an IRP.

Their client had been given an ASD demand by a police officer following a motor vehicle accident. After making six attempts to provide a sample of breath, the officer issued him an IRP. The police officer reported that the ASD produced an “insufficient flow” reading on each of the six attempts.

At the IRP hearing, Kyla Lee, who acted as the driver’s counsel, that “insufficient flow” was not one of the four possible messages the ASD would produce after an unsuccessful attempt to provide a sample. The adjudicator also rejected the argument about “insufficient flow”, saying he took it to mean the police officer was giving an overview of what happened.

The petitioner said he made an “earnest attempt” to provide a sample and at no point did he intentionally pretend to blow, block the mouthpiece or suck back or in any way falsify his attempts to blow into the machine. When assessing the driver’s testimony, the adjudicator said he found it “odd” that the petitioner said he did not pretend to blow, block or suck back the mouthpiece of the ASD.  The IRP was upheld.

Difficult position of petitioners in IRP appeals

Following the IRP hearing, the driver made a petition to the BC Supreme Court. Acumen Lawyer Brandon Moscoe made the argument that the decision was unreasonable.

The BC Supreme Court judge found that the police officer’s use of the term “insufficient flow” put the petitioner in a position of “not knowing what he had to disprove”. When he listed the potential reasons why the ASD did not take a reading so he could deny them, the adjudicator appeared to have used this as a factor in questioning his credibility.

The judge found the adjudicator, “did not give the petitioner notice of the case he had to meet or what evidence was necessary” in order to prove his innocence. Also, by assuming what the officer meant by “insufficient flow” the adjudicator “effectively gave the police evidence a presumption of reliability”. The decision was therefore ruled unreasonable and remitted to the Superintendent for a rehearing.

Challenging a failure to provide a breath sample IRP can be a long and arduous process. At Acumen Law, we have successfully challenged IRPs for our clients just like this one. We also keep the devices used by police at our office so we know exactly how they are supposed to work. Give us a call at 604-685-8889 for a free consultation.

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