Supreme Court of Canada, IRP decision.

[simnut]

Please explain what use a breath test would have been when he had just drank a beer. Was he not an N driver who could not have any alcohol period. Therefore knowing that had had a drink would make the test totally useless and unnecessary, would it not. Possibly I'm thinking about this all wrong. It looks to me like there were other possible charges and he might actually have gotten off easy.

All these little technicalities are the reason we need the new IRP laws. Too many loopholes for the "slime ball defence lawyers".

If you bear with me Smurf, I'll try to explain. And for those of you that think this is too long, just don't read please, or go to the last paragraph.

When an officer begins their investigation into drinking and driving of a Novice driver, they must begin with section 90.3 of the MVA. This section deals with drivers that are to not have any alcohol in their system while in care and control of a vehicle.

It states:

90.3(2) A peace officer may, at any time or place on a highway or industrial road if the peace officer has reasonable and probable grounds to believe that a driver has alcohol in his or her body,

(a) request the driver to drive the motor vehicle, under the direction of the peace officer, to the nearest place off the travelled portion of the highway or industrial road, and

(b) by demand made to that driver, require the driver to promptly provide a sample of breath that, in the opinion of the peace officer, is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, if necessary, to accompany the peace officer for the purpose of enabling that sample of breath to be taken.

Now, many say that this section says the officer may......yes...he may at any time or place request the driver to pull over to begin the investigation. At that point, "may" is not part of it. Once the officer has done 2(a), he must proceed with 2(b) and stated by that little word "and". Once determined that the driver DOES have alcohol in their system, the officer must give a 12 hour suspension, and if the reading is over .05, the officer can also give a 24 hour prohibition, and if over .08 , further sanctions as allowed by the government. Remember, the officer cannot give a 12 hour suspension based on observation only!

This section of the MVA was introduced the same time that the GLP for licenses came into effect, to protect both the N drivers, AND the officers. And I will explain that part.



I'm not sure if you know much about the 24 hour prohibition, so I will tell you. :D True, the officer can give a 24 hour prohibition based on observation alone. Not an assumption, but based on how the driver is acting...is he acting impaired. Now, the 24 hour has a sub section that protects the driver in case the officers observation is incorrect. It is:

215(6) If a driver, who is served with a notice of driving prohibition under subsection (2), forthwith requests a peace officer to administer and does undergo as soon as practicable a test that indicates that his or her blood alcohol level does not exceed 50 mg of alcohol in 100 mL of blood, the prohibition from driving is terminated.

On the back of the 24 hour notice, which is what the driver will read to find out his right it says:

“If a blood alcohol test was NOT administered and was not a basis for serving this notice, you have the RIGHT to forthwith request a test to determine your blood level.In the event the test indicates that your blood alcohol level does not exceed 50 milligrams of alcohol in 100 millilitres of blood, the prohibition from driving is terminated. The prohibition will not appear on your driving record and you will be allowed to drive.”

Do you see what I've highlighted? If the officer follows the legal paper(important) he is handing to you, he will knowingly have to let a Novice driver drive with alcohol in their system.

Now, their is another subsection to 215 that protects the officer from this situation, and works with the GLP. It reads:

215(6.2) Despite subsection (6), a driver who is served with a notice of driving prohibition does not have a right to request or undergo a test under subsection (6) if

(a) the peace officer who served the notice first performed a test of the driver's blood alcohol level with an approved screening device,

(b) the test indicated that the driver's blood alcohol level exceeded 50 mg of alcohol in 100mL of blood, and

(c) the peace officer used the results of the test as part of the basis on which the peace officer formed reasonable and probable grounds to believe that the driver's ability to drive a motor vehicle was affected by alcohol.

See the bold highlight? That essentially is the officer beginning the investigation with Section 90.3, where the officer MUST demand a breath sample when investigating a novice driver. THATS the way the system is supposed to work.

Some will say, well.....if the officer can't give the 24 hour in the case of a novice driver requesting a breath test....he can just give the driver the 12 hour then if alcohol of any level is found in their system using that requested breath test. Well, not really. You see, the "evidence" to prove innocence in the 24 hour prohibition is supplied by the driver as opposed to demanded by the officer, and therefore would be self incriminating if used against that driver on a different "charge". Can you see then why an officer , for both their protection and the drivers protection, needs to start with section 90.3. And by the way, the OSMV also states that the a novice driver, found with alcohol in their system WILL be served a 12 hour suspension.

These are technicalities that the officers need to make sure are done correctly, and if so, no court would find it otherwise!!! Because of the severity of the sanctions against a Novice driver, it HAS to be determined positively that there is alcohol involved.....

In "our" case, a breath sample would have proved nothing, you are right, as the alcohol was consumed after the fact. This whole incident is not that difficult to understand really. If you throw all kinds of assumptions into it ,like someone we know here (no names, just initials GB:)) yea.....sounds like he got away with murder! But assumptions dont apply in the MVA, everything issued must be able to be proven. The simple answer is, the timeline. There is an hour between the accident and the driver dealing with the police. Remember, the driver went back to his vehicle after getting "fixed up"....no fear of any wrong doing. There is evidence that the driver had a drink within that hour, which explains the "odor on breath" (which is the only statement by the officer in issuing the prohibition). There is NO evidence of any kind to show the officer there was alcohol involved before the accident, therefore NO grounds for a 24 hour prohibition! Some will say he "ran away" because he was drinking.....we have proof that he "ran away" to get help, which is an acceptable reason to leave. Even if you didn't read the entire post, did this last paragraph make sense?

[Smurf]

It looks like there are grounds to fight it, however I also see why the officer did what he did. It looks like a case of cover up, just like Monty. Possibly a charge like careless driving was more in order. All I can say is it is a mess. It is a good lesson for all reading it. DO NOT take a drink to calm your nerves. Monty and this case could go both ways. Both could have been using a cover up or both could have actually been okay and drank after the fact. The second alcohol becomes involved in any way the problems start. I can not make a judgement either way without all the facts from both sides and even then it would probably be a judgement call and could go either way.

One thing I cannot understand is why under the circumstances anyone would give the driver a drink of alcohol. To me it is an immediate red flag. Coffee would have been much more suitable.

[simnut]

It looks like there are grounds to fight it, however I also see why the officer did what he did. It looks like a case of cover up, just like Monty. Possibly a charge like careless driving was more in order. All I can say is it is a mess. It is a good lesson for all reading it. DO NOT take a drink to calm your nerves. Monty and this case could go both ways. Both could have been using a cover up or both could have actually been okay and drank after the fact. The second alcohol becomes involved in any way the problems start. I can not make a judgement either way without all the facts from both sides and even then it would probably be a judgement call and could go either way.

One thing I cannot understand is why under the circumstances anyone would give the driver a drink of alcohol. To me it is an immediate red flag. Coffee would have been much more suitable.

We are not saying it was SMART to have a beer after the accident, but it is also not illegal in this case. It was not done as a cover up as there was nothing to cover up! It was done purely as a "tranquilizer" application, if you wanna call it that.

Technically, IF the officer came to the scene AFTER the driver came back to the scene.....THEN the officer could have dealt with a novice driver in care and control of his vehicle with alcohol in his system. Technically.....But, the police were in care and control of his vehicle when the driver got back, actually his keys were in the officers pocket, and the vehicle was "impounded".

Oh, a charge of driving without due care and attention was given that night, but the officers commanding officer actually came to the drivers house the next day and notified the driver that that was tore up, gone. Basically, even the best crown lawyers couldn't have made it stick was what he eluded to.

Can you see in a little why technicalities are so important to know, or show. Technicalities were not performed correctly that night, therefore it has to be corrected. Even the vehicle impoundment was not done according to the MVA. I know, this is a bit of the "slime ball lawyer" aspect that you don't like. Hey, I don't like a lot of that either. But if a citizen has to suffer because of incorrect procedure, doesn't that citizen have the right to fight it? That is the whole basis of our legal society!

[Smurf]

He has the right and is, is he not. As I said without hearing both sides it is difficult to judge. I still like the law because I believe it will do much, more good than harm. Nothing is perfect but this is at least a step in the right direction.

[Donald G]

As Ex-cst. Robinsons conviction proved it *IS* a criminal offense (Obstructing Justice) if you drink after an accident for the purpose of negating the results of an RSD or BTA machine. Unless that decision was overturned on appeal it presently remains the law of the land in British Columbia.

[simnut]

As Ex-cst. Robinsons conviction proved it *IS* a criminal offense (Obstructing Justice) if you drink after an accident for the purpose of negating the results of an RSD or BTA machine. Unless that decision was overturned on appeal it presently remains the law of the land in British Columbia.

IF you drink after an accident for the PURPOSE of negating the results of an RSD, not the case in this "case".

[goatboy]

IF you drink after an accident for the PURPOSE of negating the results of an RSD, not the case in this "case".

Ah, but that is my point. How do you know that? Because he said so?

[simnut]

Ah, but that is my point. How do you know that? Because he said so?

Ok, just think about it for a second, try to think in an unbiased manner.

You and I don't agree on this subject at all, but I have facts that are proven, not assumptions. There are a couple of things that give a hint as to why it wasn't a "case of running away to get a drink" as opposed to "running away to get help". This driver came back immediately after receiving medical aid.

------If this driver was really into "hiding" the fact of drinking and driving, he probably wouldn't have gone back to the scene...he would have let the police find him.

-------The first question the officer asked, was of course...what happened. An answer was given...."looking at my cell phone". I'm not quite too sure why some can't just actually take this as the cause of the accident!

--------This driver received a 24 hour prohibition.......don't you think she may have delved a little further if this driver was drinking before and after the accident? There would have been signs of some impairment. As it was, impairment wasn't even the "official" reason for giving the 24 hour. It was "odor on breath". That's not even a "legal" reason for a 24 hour!!

--------Most police officers know the trick to drink something after the fact to hide the fact of drinking in the first place. Why didn't this officer push that matter more, know the driver left the scene? Because, this driver left the scene to get medical aid, as accepted by all authorities involved. And, she was told , at the scene , that the driver had some beer while getting cleaned up.

Now, even the driver admits to having that beer as not being smart. But, if you want...I'll send you a picture of his injuries...then tell me if you would be thinking in the right frame of mind. I wouldn't...I'd be in shock, and the minute that happens, say goodbye to "normal" thinking. Take that into account also.

Simply put:

-cell phone rang
-driver looked
-truck went into ditch
-driver bleeding profusely, went for help and nearby friends place
-driver was offered a beer and had some
-driver went back to truck to look after the situation (one hour later)
-police made contact with driver
-police impound vehicle(why, it was totaled), impounded dog (why, we could have pick him up)and issued "violations" to driver
-officer then dropped driver off at hospital

[MAPearce]

All these little technicalities are the reason we need the new IRP laws. Too many loopholes for the "slime ball defence lawyers".

I dunno Smurf....

All these "little technicalities" are meant to ensure that the law is followed and enforced to the letter in which it is written...

Taking them away from a defense only empowers an offense to exploit them to an unfair advantage against the accused.

And all this time I thought we lived in a fair and "just" society.

And don't think that only a defense lawyer is the only slime ball around...

History has proven that slime balls are EVERYWHERE..

[simnut]

Hey Smurf, I can see where you are coming from, but until you have to deal with the OSMV it can be hard to understand our point of view. Remember, we are not talking about guilty parties here, we are talking about valid reasons to appeal an accusation given by an officer. I know you say, you'll take that ...the good of the IRPS over weigh the "few" that have valid appeals. If you are the one with the valid reason for dispute, it doesn't matter if the "good over weight the bad". You're being screwed and should have the right to fight it.

Here is another technicality that went wrong that night for this driver. With a 24 hour prohibition, the officer may impound the vehicle IF that officer is concerned that the driver may drive that vehicle within that 24 hour prohibition, and for THAT reason only. This vehicle was totaled! NO ONE was going to drive....ever again. Another technicality done incorrectly by the officer. These "technicalities" are there in black and white, in the MVA, and are not followed...we need to have a way to protect ourselves for VALID reasons of dispute.

You know, we have to go to the Supreme Court of BC to dispute, but it is only called a judicial revue. What does that mean...well....the judge can then determine that the procedures that night were wrong or right, the officer is wrong or right. If wrong, ALL the supreme court judge will remove the 24 hour prohibition from the drivers record (cancelling it) and tell the OSMV to re-evaluate their decision. He can't tell the OSMV to change their decision. Where do we go next, the Supreme Court of Canada?

Can you not see that this is a bogus appeal process? That's why the OSMV can make the driver serve the suspension (for something that may be decide was for an incorrect reason) even with the knowledge it was going to the supreme court! That's a slap in the face of BC citizens with a valid reason to dispute.

I can give you much more background on the officer and her attitude that night, confirmed even by one of her friends at the SPCA. Now, there was a dog involved in the accident....this officer volunteers at the SPCA.....does that give you a hint perhaps?

[my5cents]

As Ex-cst. Robinsons conviction proved it *IS* a criminal offense (Obstructing Justice) if you drink after an accident for the purpose of negating the results of an RSD or BTA machine. Unless that decision was overturned on appeal it presently remains the law of the land in British Columbia.

If Robinson wasn't a cop and hadn't attended courses where defenses such as drinking after a collision were discussed, he very likely would not have been convicted.

Proving Obstructing is very hard to prove and very rare

[Smurf]

Exactly, and that is why in this type of case obstruction very easy to get away with.

I agree that defense lawyers aren't the only slime balls around but I do have to admit I have trouble with someone fighting to protect someone they know is guilty. I used to have trouble as a union rep when that happened. I was bound by law that I had to work for the person but I knew that they deserved punishment for whatever. It was a part of the job I never liked. I could never be a defense lawyer when that would be my whole job and would often entail someone who was actually guilty.

[my5cents]

Exactly, and that is why in this type of case obstruction very easy to get away with.
I agree that defense lawyers aren't the only slime balls around but I do have to admit I have trouble with someone fighting to protect someone they know is guilty. I used to have trouble as a union rep when that happened. I was bound by law that I had to work for the person but I knew that they deserved punishment for whatever. It was a part of the job I never liked. I could never be a defense lawyer when that would be my whole job and would often entail someone who was actually guilty.

A lawyer's job is to defend his client, by testing the evidence and the law. It isn't to fabricate evidence. But like every job there are good ones an bad ones.

The general consensus on these forums seems to be "if you are guilty" plead guilty and take your lumps. The question is what is guilty ? Moral guilt or legal guilt.

Personally I see nothing wrong with pleading not guilty and seeing if the crown can prove me guilty. BUT that doesn't mean that I'd take the stand and deny I did something when I knew it did.

[simnut]

Exactly, and that is why in this type of case obstruction very easy to get away with.

And, on the other side, something that has to be proved, not assumed. One difference my our case, a serious , bloody injury with no one around to help. A little indication that leaving was for a reason other than "obstruction".

I used to have trouble as a union rep when that happened. I was bound by law that I had to work for the person but I knew that they deserved punishment for whatever. It was a part of the job I never liked. I could never be a defense lawyer when that would be my whole job and would often entail someone who was actually guilty.

I hear you on this! I am in a union for this first time with this job. I am by NO means anti-union (please, don't bash me), but the procedure involved to "get rid of" a non productive, festering employee is just ridiculous. This employee made the rest of us look bad, and still had rights before being terminated. I hate it!

One way to look at "slime ball lawyers" is this. Remember, they are doing they're job. I'm not talking about the high profile lawyer Deshenko (whatever his name is) who is on a campaign as we all know, I am talking about defense lawyers that are trying to do the best job to keep balance in our society. In our society, we have the right for a defense against our accusers. We need defense lawyers, and the good ones are that....good at their job, and also makes sure that the prosecution does their job correctly. Yup, that makes the officers job really tough! If we didn't have that though, we'd be back at the old west mentality , and hanging trees in every town.

You say you hate it when a drunk driver got off on a technicality. Let me ask you this, why are those technicalities there in the first place? My thoughts are to protect ordinary citizens from bad policing or mistakes and in some cases, protect the officer. Makes sense, doesn't it?

Just recently, they added in the "technicality" of a driver being able to ask for a second breath sample on a different device. Then the lower of the two are taken as the current level of BAC. This is to protect a citizen from a possible malfunctioning device AND to protect the officer from "hassle" about a malfunctioning device and allowing him/her to prove his/her case!! If this "technicality" is not done, it opens up areas for question. This room for question needs to be eliminated in a life changing decision regarding we citizens.

Many good defense lawyers themselves are not always happy about defending a guilty person or even do it for that reason. Their attitude is to make the prosecution prove the case, not so much defend a guilty person. Can you see the difference? And it IS a balance we do need in our society.

[jerome2877]

http://vancouvercriminallaw.com/snafu-o ... -old-irps/

The actions of the OSMV is appalling! They have again started punishing the people caught up in an unconstitutional law before the remedies in the appeal for Sivia have even been heard.

Not only that but the letter sent on April 10th stated that people were prohibited from driving since April 3rd. So what if someone was in an accident from the 3rd to the 13th (when the letter was actually received)? What a joke of a government agency!

Again its guilty until we prove ourselves innocent.