Recently the BC Supreme Court released another decision concerning Immediate Roadside Prohibitions and the OSMV Tribunal, Ema v. British Columbia (Superintendent of Motor Vehicles) 2013 BCSC 47.
In that refusal to blow case, the officer indicated he detected an odour of liquor on Mr. Ema’s breath. Mr. Ema argued at the original hearing that he did not have an odour of liquor on his breath and that the officer must have been mistaken. Not surprisingly, he lost. The tribunal concluded that:
“The officer noted an odour of liquor on your breath. Even if he was mistaken as to what the odour was, it is clear he believed there to be an odour of liquor on your breath. Therefore, he more likely than not had reasonable grounds to suspect that you had alcohol in your body, the only requirement that he needs to make an ASD demand.”
Mr. Ema wisely appealed his decision, claiming that the adjudicator’s interpretation of the law was not correct. The Supreme Court agreed. They wrote
“[t]he adjudicator wrongly reasoned that the officer’s subjective belief that there was liquor on the petitioner’s breath was sufficient grounds to demand a sample… The adjudicator’s reasoning is clearly incorrect… it is unreasonable to find that an officer’s genuine but mistaken belief that he or she smells alcohol on a driver’s breath is sufficient grounds to demand a breath sample. That conclusion does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
We have had many clients who refused to blow, stating that they had not been drinking and the officer had no right to ask them to blow. When reviewing the evidence, we note that the officer almost always indicates that the subject had an odour of liquor on their breath. This is not surprising, since the IRP Report to Superintendent is a series of checkboxes, directing the officer to this conclusion.
Of course, it is not unlikely that police are often mistaken. And, on occasion, we know that they are lying. Until the Ema decision, there were no consequences if they lied about an odour of liquor. But now it appears that where the evidence establishes the officer may have been mistaken, the prohibition should be revoked.
If your refusal to blow decision was worded this way, your IRP should be revisited and revoked. Any money you spent on towing and storage charges, ignition interlock, and RDP should be refunded to you.
We have already started the process of reviewing files and writing the Government for our clients whose decisions had similar reasoning to that in Ema. If the adjudicator in your refusal to blow case said that it did not matter whether the officer was mistaken about the smell of liquor, or similarly unreasonable language, contact our office. We are prepared to act for people whose decisions were wrongly decided on this point.