CASE LAW - Spencer v Superintendent of Motor Vehicles

I'm going to say again, that the OSMV has a VERY important job to do, keeping us safe on the roads!

But.....I think we need to make sure that "processes" are done correctly with BOTH parties in mind, after all, we live in Canada where our rights are protected.

Mr. Martin says the following:

"We must not lose sight of the tremendous benefits and achievements that the new stronger administrative sanctions have brought about. There are more people alive today as a result of the province's new approach to drinking and driving."

I believe that impaired drivers should have all sanctions available applied to them IF conditions are met.  BUT, in the effort of the government to ease the load on the court system and giving the "power" to the single police officer "at the roadside",  rights were taken away from the driver in question.  I am worried about the driver that is wrongfully "convicted", immediately, and without recourse.  Remember, we still believe in innocent until proven guilty! ONE driver wrongfully "nailed"  by an improper device or an officer that has had a bad day etc.  is one too many in our society.  I really do believe that the new sanctions DID make a lot of drivers decide if they should drink and drive, I don't disagree. But we need to do things correctly and fair....or else "police state" comes to mind, and that is not the direction we want to go. 

What about the apealates that DO have  genuine or valid evidence that is NOT accepted in a review, but would be accepted in a court of law and overturn the OSMV adjudicators decision?   By the OSMV ignoring (yes, ignoring) this valid evidence, it forces the apealate to go to court, a costly venture for both the "convicted" as is for the province of BC.   How many denied appeals didn't go to the Supreme Court of BC because of costs?  Has that been figured into that "equation"?  I believe the answer to that question would greatly change the statistics of how many appeals the OSMV has handled correctly.  The 3000 judicial revues are only those of people that can afford, or were willing to spend the money to go to court.

Now here are some things that concern me, and should concern everyone involved.

    Statements by OSMV adjudicators:

1)  "... I find that [the officer’s] statements made on the day in question are more credible than statements made at a later date, after an individual has had time to consider the evidence against them. You have had time to reflect on the police evidence and consider the consequences of the IRP, whereas Constable Arnold-Smith completed his Report on the day in question.

Ultimately I don’t find your evidence compelling, and I prefer that of the officer. Consequently, I find it more likely than not that the time of your last drink was a half hour earlier as indicated in the officer’s reports. Therefore, I find it more likely than not that the ASD registered a fail as a result of alcohol in your blood, and not due to alcohol in your mouth"

I do believe that the OSMV uses this "line", as well as others,  in many appeals it hears, and in many cases would be a wrong assumption by the adjudicator.  Why should police officers have the "credibility" advantage in regards to OSMV  appeals?  If the OSMV can promise me that EVERY police officer will do everything exactly as dictated by law, and promise me that EVERY officer will not have a "bad" day from now on, and promise me that EVERY officer will not come into a situation with a "pre-determined" mind set.....then I can see where this "credibility" advantage can come into play.  But the OSMV can't, because police are human and there is not one perfect human out there as far as I know. 

2) "If your reason for failing or refusing was that you were unable to provide sufficient air due to your medical condition, I would expect that you would have disclosed your medical condition to the constable and explained that you were not able to provide a sample because you were having trouble breathing. There is no evidence that you did that. I would also expect that your medical difficulties would have been observable and apparent to the constable. The constable did not make any mention of breathing difficulties. Additionally, the constable stated that you twice placed your tongue over the tube. That behaviour is consistent with a deliberate attempt not to provide a breath sample. You did not provide an alternative explanation for that behaviour. Ultimately, I am not satisfied that you had a reasonable excuse for failing or refusing to comply with the ASD demand."

What?  Do you know how many drivers get VERY nervous when dealing with the police.....whether they are innocent or not?  Police are trained to be in that situation, the general public isn't!!!  Many would forget to, or not think of saying something pertinent when dealing with police. Why would this adjudicator even bring up the fact that this person didn't "devulge" the medical condition as a basis of denial of appeal when, now the evidence is brought forward in the appeal process.  It is now evidence or information brought forward that the OSMV should be considering....the courts do...as it appears in many overturned adjudicator decisions.  And, if this person placed their tongue over the tube, was it a deliberate attempt to NOT provide a sample, or because this person KNEW they couldn't provide a sample, or cause physical discomfort in attempting to?  Why can't the OSMV take evidence given in appeals instead of ignoring it?  If the OSMV can ignore this evidence, why have the appeal process at all?

https://www.bccourts.ca/jdb-txt/SC/11/13/2011BCSC1311.htm

We are also ustilizing a device, the ASD, that was NOT designed to "convict" at the level it is now being used.  It is also not "regulated" in it's application as with the breathalizer and a criminal impaired conviction.  Daffydd Hermann, a trained ASD "operator" and witness for the province throws a "wrench" into the government opinion of allowing this device to be used in "impaired" cases.  He says:

"[289]Mr. Hermann also said that some of the procedural safeguards present with respect to an approved instrument are not practical for use in relation to ASD’s.  These include the requirement that the officer note the last drink consumed by the driver to ensure that mouth alcohol is not interfering with the results."

https://www.bccourts.ca/jdb-txt/SC/11/16/2011BCSC1639.htm#_Toc310333376

THAT statement alone should scare the driving public.   Why are the prcedural safeguards present when applying the criminal conviction of impaired driving and use of the breathalizer?  These machines cannot detect the difference between alcohol in the mouth or in the deep lung air.  The effect is cumulative, i.e. the device will simply add the alcohol exhaled from the lungs with the alcohol in the mouth.  This means that if you burp, it will affect the level of BAC the ASD reads, it means that if you just used mouthwash (ones with alcohol content) the ASD will detect an increased amount of alcohol.  Remember, drivers are to be "convicted" on BAC in their blood system which causes the impairment...not the alcohol in their mouth...which doesn't cause impairment. 

Historically the ASD calibration test period was 14 days. Recently it was changed to 4 weeks. Is this wise...as undisclosed police records showing ASDs being out by as much as 35% when tested for calibration?  If these devices need to be calibrated in the first place, should they not be calibrated everytime they are used?  Especially if they are to be used as the government wants to now??  What if a device, at time of calibration, is found to be faulty?  What about the driver that was "convicted" the day before with the use of that device?  Are the police required to notify the government or the people who have received IRPs?  Does the government regulate their maintanence?  I know they have "regulations" in place regarding the ASD's, but do they actually regulate those?

" In September 2010 the British Columbia Government enacted new laws to make the ASD the decisive test at the roadside. This approach has been controversial. The device was not introduced to be used in such a manner. It has now been promoted to an evidence gathering device. The ASDs used in British Columbia do not retain calibration or breath test results in memory or document form. Although there are other Alco-Sensor IV models that have this function, in BC the police use the cheapest version." 

How the ASD Works

I know the whole intent of these new, and existing drinking and driving laws are in place to save lifes...and EVERYONE should be all for it!!!  I am thankful that  my loved ones were safe yesterday because of the OSMV.   But some aspects of the new laws enacted in September are akin to the government starting the engine of a steam roller (the OSMV) and alloweing it to start moving...... with no brakes.