Last week was a very successful week. In addition to succeeding in a number of IRP review hearings, we succeeded in two 90-day Immediate Roadside Prohibitions appeals in BC supreme Court. These were Judicial Review appeals where our clients did not succeed in their original hearing before the RoadSafetyBC tribunal, and appealed their cases to BC Supreme Court on the basis that the adjudicator’s decision was unreasonable.
These cases are important, as they help to clarify some of the procedure and law about Immediate Roadside Prohibitions.
“When was your last drink?”
The first case, McConachie v. British Columbia (Superintendent of Motor Vehicles) 2014 BCSC 2009, involved an individual who had been drinking in his vehicle. Mr. McConachie told the officer that he had his last drink “five minutes ago.” Because mouth alcohol takes fifteen minutes to dissipate (or longer according to some studies) the police officer waited ten minutes to take the sample. Essentially, he relied on the answer given to him and then added up the time to make a full fifteen minutes.
We argued the case before the adjudicator, and were unsuccessful. The adjudicator found that the officer had turned his mind to mouth alcohol and waited fifteen minutes. Kyla took it to BC Supreme Court before Justice Smith, arguing that this was not a reasonable finding. The Court agreed, stating:
[33] The timing of the petitioner’s last drink is evidence that impacts directly on whether the ASD properly registered a fail: Gillies at para. 96. If the required 15 minutes had not elapsed before the first test, the effect of mouth alcohol had to be considered and the validity of the result questioned.
[34] The adjudicator found that the petitioner used the words “five minutes ago.” Even if that was a reasonable finding on the evidence, it does not address the issue of whether that statement had been accurate at the time.
[35] A driver asked about the time since his last drink will not have been timing that period with a stopwatch. Any time period given must be taken as an estimate subject to some margin of error. This is particularly so when the police officer fully understands the significance of that time period and the driver does not. If any authority is needed for that proposition, it is found in Ulrich. That is, in fact, the main point of Ulrich, but the adjudicator appears to have taken that case as standing only for the need to wait 15 minutes.
[36] Constable Brydon at the roadside took the petitioner’s alleged reference to five minutes as an accurate-to-the-minute statement and added exactly ten minutes. In the circumstances, he could not reasonably have been confident that a total of 15 minutes had in fact elapsed since the petitioner’s last drink. In approaching the matter as purely one of credibility focussed on the words used, the adjudicator fell into the same error and failed to resolve the important factual issue.
[37] For those reasons, I must find that the reasoning process was “manifestly flawed,” within the meaning of Scott. The adjudicator’s decision cannot be saved by the fact that a second test, five minutes after the first, also registered a “fail.” The petitioner was entitled to two valid tests. The matter is remitted to the superintendent for a new hearing before a different adjudicator.
This is an important decision for two reasons. Firstly, it recognizes the importance of waiting a full fifteen minutes and not simply relying on an estimate in circumstances where the timing is clearly not going to be exact. But it also prevents police officers from relying on a second test, conducted well beyond fifteen minutes, where they should have been aware of circumstances that would have impacted the test reliability.
We have seen many examples of police not waiting a full fifteen minutes when there is a clear mouth alcohol concern. This has prevented our clients from having the two valid tests that they are relied on in the circumstances. The Government tribunal has repeatedly made the issue about the officer’s subjective belief instead of about whether it can reasonably be said on the facts that the result was reliable.
We are very happy with the outcome of this case. We are also happy to report that we have already had IRPs revoked on the basis of this decision.
Who is a “Driver” under the IRP law?
After that case, we argued another case pertaining to the definition of “driver” in the Motor Vehicle Act. In that case, our client had been stopped by police inside a gated parking lot. He was issued an IRP after he refused the breathalyser test.
We did not do the original hearing on this case. However, when we were hired to conduct the judicial review, we were surprised to see that the adjudicator had not considered whether there was sufficient evidence to find the client to be a driver. Although he was driving, to be issued an IRP, he had to be on a highway or industrial road.
Some parking lots fall within this definition. Some do not. The adjudicator had not considered the question of whether this parking lot could fairly be said to fall within that definition on the evidence.
Although it had not been advanced at the original hearing, the adjudicators are bound by statute to revoke a prohibition if a person is not a driver. There is no discretion in this matter. They must therefore always make a determination that a person is a driver before they can uphold the prohibition.
The interesting legal issue in the case came down to the question of who is responsible for gaps in the evidence. The police had not provided evidence about the nature of the parking lot. Nor had the client. The only evidence about this parking lot was that it was at a hotel and had a gated exit.
The Justice who heard the case gave oral reasons the same day Kyla argued it. She found that in the absence of evidence to indicate whether it was open to the public for parking or essentially private, the adjudicator could not reasonably on the evidence before her find that the client was a driver. The matter was sent back to the RoadSafetyBC tribunal for a re-hearing.
This case is important. There are often implicit assumptions made by the adjudicators when conducting hearings. For example, in that case the assumption was that the parking lot was within the definition of a “highway” without any analysis or any facts to support that finding.
It also highlights the importance of considering every angle and argument possible. This is why it is important to have an experienced IRP lawyer handle your case. Most people who check off “I was not driving or in care and control of a motor vehicle” on the IRP review form only do so if they were not physically operating the vehicle. They do not always know that a field, or some parking lots, or driveways, etc. are not places that they can properly be called “Driver.”
We are glad the decision reflects the importance of adjudicators having a factual foundation for findings, and not starting from an assumption that the requirements of the Motor Vehicle Act have been met. We’re also pleased to report that developments in the law indicate that there will be more and more successful Immediate Roadside Prohibition appeals.
If you have been issued an Immediate Roadside Prohibition, call us right away. This week a new client was referred to us by his pizza delivery driver. It doesn’t matter how you come to us. What matters is that there is a good chance of a successful immediate roadside prohibition appeal or review decision if we get on the case right away.