At the end of each month we typically look back to tally our successes and failures and think about what we can do better and how our efforts can be more effective for our clients. One thing that came up in our office discussions yesterday was the very tangible link we see between our perseverance and success. Simply put, if we weren’t so tenacious, we wouldn’t succeed as often as we do.
It was our relentless quest for ASD calibration information that revealed to us that the Port Moody police were incorrectly calibrating their devices. When we figured it out and we were certain that we were correct, in our minds we had a duty to make it public. Same for the faulty evidence they were recently submitting to support their IRPs.
Lots of innocent BC drivers get IRPs. If we can help someone we’ve never met from suffering an IRP they didn’t deserve, we’re happy with that too.
We have also identified problems in other police detachments over the last 2 years which we’re either still investigating or taking steps to address. However, getting our hands on disclosure is becoming a tougher and tougher challenge.
Stung by the major revelations we’ve made over the last 18 months, many police forces are doing everything they can to make such evidence inaccessible, too costly to locate or irretrievable. Sometime they simply refuse to disclose it. Other times they just delay and delay so that the people who received IRPs can’t have the information to defend themselves during the 90-day period of their IRP driving prohibition. In the case of Port Moody, sadly, we had to wait over a year before they finally confessed.
We think that there is a culture of delay in the police forces in BC. Too bad because it costs taxpayers.
Some of our successes come from simply reading the disclosure over and over when you have a feeling that something is wrong.
Kyla received a decision on Wednesday for an IRP review revoking the prohibition for a very obscure reason. The client was driving from a bar and the ASD samples were both taken only minutes after our client finished his drink. That would explain the two ASD Fails – our client still had residual mouth alcohol for each sample. The problem was the police officer recorded an admission that would suggest that the samples were reliable.
Of course most people lie to the police, and the most common lie is to claim that the drinking was much earlier. People think this will help them. The admission is not relied on in court because the unfairness of using it in this context and because we all know these admissions are unreliable. The OSMV tribunal relies on these statements all the time, however, to impeach any defence the applicant might advance. So even though we knew the samples were tainted by residual mouth alcohol, we also knew this was a dead end argument with the OSMV.
Our client was innocent, but this is an argument that the OSMV would certainly and easily reject using their methods and tactics. So we kept thinking. And we kept reading over the disclosure.
Handy for us and lucky for our client is that we have a number of ASDs and the equipment to calibrate them. We check our ASDs for calibration before and after we do any experiments in our office. If there’s a problem, Kyla recalibrates the ASD. She noted that the one of the ASDs used in our client’s case was calibrated using a solution described in a manner we had never seen. We investigated it further and confirmed that there was no such solution.
We then obtained information from an independent expert on breath testing to confirm that there was no such solution.
Our client was innocent because of the facts in his case. The problem was that being innocent would not cause the OSMV to revoke the 90-day IRP. Kyla succeeded for our client because we identified an obscure technicality.
The important thing for the client is that we succeeded in having his IRP revoked. For us it reaffirms the connection between perseverance and success.
In August Kyla was successful in more IRPs review hearings. We’re looking forward to reviewing the stats for September when we get them.
Earlier in the week we received a decision on an Application for Extension of the time period to file for review of an IRP. The OSMV applies the strictest version of the legal test for these applications which always seems inappropriate to us because there is no prejudice to the Government if people come to file late for their review. In any event, we accept these cases if we feel that our clients should be granted the extension despite the uphill battle in many cases.
In one case a client suffered a workplace injury before receiving the IRP. She checked herself in to a hospital after receiving the IRP. Now, we have seen cases when people who were hospitalized and therefore didn’t file their dispute within 7 days were rejected on their Application for Extension because they: a) should have known that they could be injured later in the week so they should have taken steps earlier in the week to file for review, or b) should have given instructions to the emergency-room surgeon to have the hospital staff file for the IRP review on their behalf.
The reasoning usually defies logic as far as we’re concerned, but this is the system in which we work. Sometimes we’re frustrated, but we’re never deterred.
In this case we made a very well-reasoned argument, as she always does, to show that in our client’s particular circumstances the normal reasons for rejection would not apply. Tenacity paid off and we were successful in persuading the OSMV to allow our client to now file for a review of her IRP.
Few people would know that our client in this case may have surpassed lottery odds to persuade the OSMV to extend the time period to file for review. Her luck was to have Acumen Law Corporation acting for her. We diligently went through the evidence and put together the best case to succeed at the review.
Again we see the connection between our perseverance and success. It’s a theme and perhaps it should be the motto of our law office.