B.C. drunk driving law could be overturned

[KL3-Something]

It is new. The old grounds for appeal were if you were the driver, didn't refuse to blow, and the cop says you blew a warn, you were guilty.

No. It isn't new. I personally know of IRP's that were previously revoked due to the likelihood of the presence of mouth alcohol.

[zzontar]

Well I know someone who's rejected appeal included a statement saying that although the appeal officer realizes that breath spray can have an affect on an ASD, the officer believed that no alcohol was consumed within 15 minutes so the test is valid. Also included was a statement saying the mere possibility that a driver has consumed alcohol within 15 minutes of the test does not preclude an officer from relying on it's accuracy. Also stated was that informing the officer about breath spray was irrelevant, as he clearly turned his mind to recent alcoholic consumption, therefore dismissing the argument that breath spray negates the test result.

All I can say is wow, what a farce when the person in charge of an appeal doesn't realize the effects of residual mouth alcohol, and screws up someone's life in the process.

[KL3-Something]

There is nothing that precluded your "friend" from enlisting the assistance of counsel to prepare and present their evidence to the adjudicator in such a manner as to bring forward the likelihood that the particular breath spray that was used would have rendered the ASD test innaccurate. If you tried to wing that yourself...uh I mean if your friend tried to wing that themselves then their evidence very likely would not outweigh that of the officers.

[jerome2877]

No. It isn't new. I personally know of IRP's that were previously revoked due to the likelihood of the presence of mouth alcohol.

NO, the only two things they cared about were whether you were a driver and if the ASD registered a warn or fail! Lets see your proof of this.

[KL3-Something]

Unfortunately I have been privy to information on specific situations that I cannot share in this manner.

I did, however, find the case here:

http://bcjustice.com/index.php?option=c ... temid=1499

This was an appeal on an adjudication decision from an IRP issued on Jan 26, 2011. Of particular interest to you may be paragraphs 22, 24, 69, 77, 78, 90 and 96. By reading this decision you will see how the grounds that the ASD registered a "fail" is clarified by the judge at para 22 "The analysis in the Decision makes it clear that the Adjudicator was assessing whether the ASD properly registered a FAIL."

Ultimately the judge ruled that the IRP was to be sent back to the OSMV because the Adjudicator did not properly consider the evidence of the driver, the crux of who's evidence surrounded the possibility of mouth alcohol affecting the ASD result.

Much ado about nothing for an issue that you say could not be brought up.

[jerome2877]

Unfortunately I have been privy to information on specific situations that I cannot share in this manner.

I did, however, find the case here:

http://bcjustice.com/index.php?option=c ... temid=1499

This was an appeal on an adjudication decision from an IRP issued on Jan 26, 2011. Of particular interest to you may be paragraphs 22, 24, 69, 77, 78, 90 and 96. By reading this decision you will see how the grounds that the ASD registered a "fail" is clarified by the judge at para 22 "The analysis in the Decision makes it clear that the Adjudicator was assessing whether the ASD properly registered a FAIL."

Ultimately the judge ruled that the IRP was to be sent back to the OSMV because the Adjudicator did not properly consider the evidence of the driver, the crux of who's evidence surrounded the possibility of mouth alcohol affecting the ASD result.

Much ado about nothing for an issue that you say could not be brought up.

That was in supreme court before a judge. The adjudicator followed their instructions and upheld the IRP due to the two criterias, was he a driver and did the device register a warn or fail. Its like my case, when the officer told me a warn is 30 days instead of 3 which factered into my decision to give a second sample. Do you think the OSMV cared? Absolutley not as I was a driver and the second test did register a fail. I would be very interested in the outcome of the second appeal!

[KL3-Something]

Unfortunately I have been privy to information on specific situations that I cannot share in this manner.

I did, however, find the case here:

http://bcjustice.com/index.php?option=c ... temid=1499

This was an appeal on an adjudication decision from an IRP issued on Jan 26, 2011. Of particular interest to you may be paragraphs 22, 24, 69, 77, 78, 90 and 96. By reading this decision you will see how the grounds that the ASD registered a "fail" is clarified by the judge at para 22 "The analysis in the Decision makes it clear that the Adjudicator was assessing whether the ASD properly registered a FAIL."

Ultimately the judge ruled that the IRP was to be sent back to the OSMV because the Adjudicator did not properly consider the evidence of the driver, the crux of who's evidence surrounded the possibility of mouth alcohol affecting the ASD result.

Much ado about nothing for an issue that you say could not be brought up.

That was in supreme court before a judge. The adjudicator followed their instructions and upheld the IRP due to the two criterias, was he a driver and did the device register a warn or fail. Its like my case, when the officer told me a warn is 30 days instead of 3 which factered into my decision to give a second sample. Do you think the OSMV cared? Absolutley not as I was a driver and the second test did register a fail. I would be very interested in the outcome of the second appeal!

Oh for chrissakes you either didn't read or are unable to comprehend the wording in a Judge's ruling...You wanted proof that the OSMV adjudicators can consider mouth alcohol during appeals and I gave it to you. I wasn't referring to your particular tale of woe. The Supreme Court Judge was not hearing new evidence. Just arguments that the adjudicator incorrectly ruled on the evidence before her. She (the Judge) clearly stated in her ruling that the adjudicator was deciding on whether or not the ASD properly registered a "fail". The entire appeal was based on the possibility of mouth alcohol. The Judge sent it back for a new adjudication with the parameters clearly set. Why would the Judge have done that if the possibility of mouth alcohol could not be factored in to the adjudication?

If the key hurdle here is your inability to decipher the low-grade legalese that is present in that ruling then I would suggest that in the future you enlist the assistance of a lawyer when filing your appeals.

[simnut]

........... sent back to the OSMV because the Adjudicator did not properly consider the evidence of the driver, the crux of who's evidence surrounded the possibility of mouth alcohol affecting the ASD result.

Much ado about nothing for an issue that you say could not be brought up.

And law enforcement and such agencies wonder why we, "joe public" DON'T want to have to deal with the OSMV? :purefury:

[KL3-Something]

........... sent back to the OSMV because the Adjudicator did not properly consider the evidence of the driver, the crux of who's evidence surrounded the possibility of mouth alcohol affecting the ASD result.

Much ado about nothing for an issue that you say could not be brought up.

And law enforcement and such agencies wonder why we, "joe public" DON'T want to have to deal with the OSMV? :purefury:

What? You don't think that Provincial and Supreme Court judges occasionally err in their rulings as well? Do you have absolute faith in judicial decisions at those levels? If those judges didn't occasionally err then we wouldn't have the BCCA and the SCC. In the case of Administrative Adjudications the first level of quality control is at the BC Supreme Court level. No matter where the final decision is made you will ultimately have to "deal with" the OSMV.
:sunshine:

[simnut]

What? You don't think that Provincial and Supreme Court judges occasionally err in their rulings as well? Do you have absolute faith in judicial decisions at those levels? If those judges didn't occasionally err then we wouldn't have the BCCA and the SCC. In the case of Administrative Adjudications the first level of quality control is at the BC Supreme Court level. No matter where the final decision is made you will ultimately have to "deal with" the OSMV.
:sunshine:

You still don't get it, do you....

This first level of quality control does didily squat when you're still waiting for a court date to dispute "refused appeals" by the OSMV, and ...and I'm gonna capitalize this......THE OSMV STILL MADE THE DRIVER SERVE THE 4 MONTHS SUSPENSION ...........BEFORE THIS SO CALLED "FIRST LEVEL OF QUALITY CONTROL" HAS EVEN BEEN REACHED! Can you not see the issue there????? A suspension made to be served by the OSMV EVEN with the knowledge that the dispute had been entered into the Supreme Court of BC!!!!

Your OWN article proves my point......that the OSMV adjudicators don't have a clue of what they are doing......and it was THEIR decision that denied the two appeals put forward to them in our case.....resulting in a 4 month suspension.....for something that waiting to be disputed in the Supreme Court of BC.......so much for your "first level of quality control" eh? :sillygrin:

[jerome2877]

Oh for chrissakes you either didn't read or are unable to comprehend the wording in a Judge's ruling...You wanted proof that the OSMV adjudicators can consider mouth alcohol during appeals and I gave it to you. I wasn't referring to your particular tale of woe. The Supreme Court Judge was not hearing new evidence. Just arguments that the adjudicator incorrectly ruled on the evidence before her. She (the Judge) clearly stated in her ruling that the adjudicator was deciding on whether or not the ASD properly registered a "fail". The entire appeal was based on the possibility of mouth alcohol. The Judge sent it back for a new adjudication with the parameters clearly set. Why would the Judge have done that if the possibility of mouth alcohol could not be factored in to the adjudication?

If the key hurdle here is your inability to decipher the low-grade legalese that is present in that ruling then I would suggest that in the future you enlist the assistance of a lawyer when filing your appeals.

I read it and I comprehended that the judge thought the OSMV should consider mouth alchohol but that didn't change the appeal process for IRP's. Why would they have to add that section if it was already there? Nope, I have read many appeal results and the only things they cared about was whether you were a driver and if the ASD read fail or warn, so thats not proof at all.

I think your "key hurdle" is your delusion that this process is fair and effects only drunks, no innocent people! I would suggest you keep your suggestions to yourself! I have done just fine and will continue to do so, but thanks anyway.

[zzontar]

There is nothing that precluded your "friend" from enlisting the assistance of counsel to prepare and present their evidence to the adjudicator in such a manner as to bring forward the likelihood that the particular breath spray that was used would have rendered the ASD test innaccurate. If you tried to wing that yourself...uh I mean if your friend tried to wing that themselves then their evidence very likely would not outweigh that of the officers.

The only way to appeal was in writing, and then all one can do is state that an alcohol-based breath spray was used. ANYONE dealing with the appeals should know this affects the reading without having to bring it to the supreme court. I don't know why you have such a hard time realizing not everyone charged with anything is automatically guilty, and that a flaw in the system is actually a bad thing.

[KL3-Something]

What? You don't think that Provincial and Supreme Court judges occasionally err in their rulings as well? Do you have absolute faith in judicial decisions at those levels? If those judges didn't occasionally err then we wouldn't have the BCCA and the SCC. In the case of Administrative Adjudications the first level of quality control is at the BC Supreme Court level. No matter where the final decision is made you will ultimately have to "deal with" the OSMV.
:sunshine:

You still don't get it, do you....

This first level of quality control does didily squat when you're still waiting for a court date to dispute "refused appeals" by the OSMV, and ...and I'm gonna capitalize this......THE OSMV STILL MADE THE DRIVER SERVE THE 4 MONTHS SUSPENSION ...........BEFORE THIS SO CALLED "FIRST LEVEL OF QUALITY CONTROL" HAS EVEN BEEN REACHED! Can you not see the issue there????? A suspension made to be served by the OSMV EVEN with the knowledge that the dispute had been entered into the Supreme Court of BC!!!!

Your OWN article proves my point......that the OSMV adjudicators don't have a clue of what they are doing......and it was THEIR decision that denied the two appeals put forward to them in our case.....resulting in a 4 month suspension.....for something that waiting to be disputed in the Supreme Court of BC.......so much for your "first level of quality control" eh? :sillygrin:

Follow the thread there, Bud. I'm not referring to your kid's suspension for being a crappy class 7 driver. I was done with that topic weeks ago so I am not in need of "getting" your point of view on it. This was about whether or not mouth alcohol could be considered as part of the ground for an appeal on an IRP. Period. It could before and it can now.

[KL3-Something]

Oh for chrissakes you either didn't read or are unable to comprehend the wording in a Judge's ruling...You wanted proof that the OSMV adjudicators can consider mouth alcohol during appeals and I gave it to you. I wasn't referring to your particular tale of woe. The Supreme Court Judge was not hearing new evidence. Just arguments that the adjudicator incorrectly ruled on the evidence before her. She (the Judge) clearly stated in her ruling that the adjudicator was deciding on whether or not the ASD properly registered a "fail". The entire appeal was based on the possibility of mouth alcohol. The Judge sent it back for a new adjudication with the parameters clearly set. Why would the Judge have done that if the possibility of mouth alcohol could not be factored in to the adjudication?

If the key hurdle here is your inability to decipher the low-grade legalese that is present in that ruling then I would suggest that in the future you enlist the assistance of a lawyer when filing your appeals.

I read it and I comprehended that the judge thought the OSMV should consider mouth alchohol but that didn't change the appeal process for IRP's. Why would they have to add that section if it was already there? Nope, I have read many appeal results and the only things they cared about was whether you were a driver and if the ASD read fail or warn, so thats not proof at all.

Where did you read these "appeals"? In how many of these appeals did the driver present evidence that they had mouth alcohol that the cop either knew about or ought to have known about?

Unless you either were allowed into the file room at the OSMV adjudication office or have "many" friends who were issued IRP's, appealed them and then let you read the adjudicators decision that was sent to them, you cannot have access to adjudicators decisions because they are not public record. Only if the appeals then go to the Supreme Court do the decisions enter the public domain. And, of course, those are all published for all to read as they then form case law. So again, where did you read all these appeal decisions? Links please. Try the websites below. They have great search engines and all of these many Supreme Court appeals will be found contained within:

http://www.canlii.org/en/

http://bcjustice.com/index.php?view=cat ... temid=1499

I think your "key hurdle" is your delusion that this process is fair and effects only drunks, no innocent people!

Actually on the contrary. I clearly believe that this process DIRECTLY affects innocent people. Like the 74 people who aren't dead thanks to alcohol-related crashes since the implementation of the IRP in Sept 2010.

I would suggest you keep your suggestions to yourself! I have done just fine and will continue to do so, but thanks anyway.

You're welcome. Anytime. You know where to find me. :)

[KL3-Something]

There is nothing that precluded your "friend" from enlisting the assistance of counsel to prepare and present their evidence to the adjudicator in such a manner as to bring forward the likelihood that the particular breath spray that was used would have rendered the ASD test innaccurate. If you tried to wing that yourself...uh I mean if your friend tried to wing that themselves then their evidence very likely would not outweigh that of the officers.

The only way to appeal was in writing, and then all one can do is state that an alcohol-based breath spray was used. ANYONE dealing with the appeals should know this affects the reading without having to bring it to the supreme court. I don't know why you have such a hard time realizing not everyone charged with anything is automatically guilty, and that a flaw in the system is actually a bad thing.

Maybe you needed to present your evidence in a more compelling manner. If you didn't know how best to go about it.....that is what lawyers are for. It's that same if you had a criminal charge. Is it better for you to self-represent or get a lawyer?

In the future, check your label and make sure you aren't spraying an alcohol-based breath spray into your mouth when you are about to get behind the wheel or when you see a road check up ahead. You never know where those darn things will pop up.