Lindsay Kenney Associate was successful in appealing an Immediate Roadside Prohibition for a client as the Superintendent could not be satisfied that the accused’s Blood Alcohol Concentration was higher than 80 mg%.
The argument was that either:
- the attending officer made a procedural mistake; or,
- there was an error in the Approved Screening Device.
If so, the Immediate Roadside Prohibition should be revoked. Section 215.5(1) of the Motor Vehicle Act requires the Superintendent of Motor Vehicles of British Columbia to confirm an Immediate Roadside prohibition, along with the monetary penalty and vehicle impoundment, if:
- You were the driver within the meaning of s. 215.41(1)l
- The ASD registered a FAIL as a result of your blood alcohol concentration being not less than 80 milligrams of alcohol in 100 millilitres of blood (80 mg %);
- You were advised of your right to request a second test;
- If requested, it was provided and performed on a different ASD;
- The Notice was served on the basis of the lower analysis result; and
- The result of the analysis on the basis of which the Notice was served was reliable.
Section 215.5(4) of the Act requires the Superintendent of Motor Vehicles of British Columbia to revoke the Immediate Roadside Prohibition if the Superintendent of Motor Vehicles of British Columbia is not satisfied of the grounds stated above.
Mr. Ahuja obtained a toxicologist report in defense of the client who provided a drinking pattern report. The drinking pattern was inconsistent with a FAIL reading on an ASD, which indicated that there was either:
- error by the attending officer; or,
- a faulty Approved Screening Device.
Submissions were made and were successful under section 215.5(1)(b). The Superintendent was satisfied that the client’s BAC was less than 80 mg%. The driving prohibition was revoked.
Lindsay Kenney LLP – Langley Law Office
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.
This article was written by a lawyer formerly with Lindsay Kenney LLP.