FILE PHOTO - An RCMP Constable holds a breathalyzer test in Surrey, B.C., in this September 24, 2010 photo.
Image Credit: THE CANADIAN PRESS/Darryl Dyck
November 04, 2020 - 7:30 AM
A Kelowna woman who lost her licence for 90 days after failing a roadside breathalyzer test, will get a second chance to appeal her suspension after a B.C. Supreme Court justice ruled minor errors in police paperwork meant she was due a second hearing.
In the Oct. 30 B.C. Supreme Court decision, Justice Dennis Hori ruled the adjudicator who dismissed the original appeal used flawed reasoning to justify the errors and should not have rejected an appeal by the driver.
According to the decision, Gabriel Jordan Mason was pulled over by police after she jumped a red light late at night on April 1. Suspecting she was impaired, Mason was breathalyzed and on her fourth attempt to use the device failed the test. She was issued a 90-day suspension of her licence.
Roadside prohibitions are much different than the criminal code charge of impaired driving and driving with a blood alcohol level above the legal limit because there's typically no court process to determine guilt. Mason first appealed the suspension with the Superintendent of Motor Vehicles but was unsuccessful. Only in those cases can someone seek a judicial review of the Superintendent's findings and it's rare they overturn them.
According to the decision, Mason argued the police file was incomplete because it says she was breathalyzed four times at 11:41 p.m. But she questions how this could have happened in just a one-minute time frame?
"The Adjudicator did not analyze or explain how the police officer could make the (breathalyzer) demand at 23:41 hours, retrieve the (breathalyzer) device from his police cruiser, have the petitioner make four attempts to provide a breath sample, explain the proper method to provide the sample between the first three attempts and do all of that within the minute of 23:41 hours," Justice Hori said.
The Justice said the adjudicator's justification that the "timeline of events is somewhat unlikely" did not explain how the events managed to take place in one minute and was a flaw in the adjudicator's reasoning to reject the appeal.
Mason also appealed on the basis the breathalyzer wasn't working properly because no error messages appeared on the device during her first three void attempts. While Justice Hori dismissed that aspect of the review, he was critical of the adjudicator's justification that there was nothing wrong with the device.
"The Adjudicator concluded that the (breathalyzer) was working properly because there was no persuasive evidence that the (breathalyzer) was malfunctioning and because it 'accepted a valid fail reading,' Hori said. "The analysis employed by the adjudicator on this conclusion is circular reasoning. When the issue is whether the (breathalyzer) was working properly, it is not logical to accept that because the device produced a fail reading it was working properly."
Ultimately, Justice Hori ordered a review of the 90-day suspension and a new hearing in front of a different adjudicator, but will most likely be dismissed.
You can find the complete decision here.
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