VANCOUVER — A man who registered two warning readings on a roadside screening device has had his immediate, three-day driving ban thrown out by a judge who ruled there was no evidence alcohol affected his ability to drive.
But B.C.'s superintendent of motor vehicles says police will continue to hand out immediate, three-day roadside prohibitions to those who drink and drive despite the judgment.
Lee Michael Wilson was stopped at a police road check near Coombs, B.C., Sept. 12, 2012 and had an odour of alcohol on his breath and admitted to drinking four beers earlier, according to the ruling by B.C. Supreme Court Justice Dev Dley.
He provided two breath samples to an approved roadside screening device, both of which registered warn readings, and was then served the immediate driving prohibition.
Wilson asked the superintendent of motor vehicles to review the ban but had his application dismissed, so he asked the B.C. Supreme Court to quash the prohibition.
"A plain reading of the legislation requires more than just a warn reading," said Dley in his ruling. "There is no presumption that a driver's ability to drive is affected by alcohol solely on the basis of a warn reading."
Dley said police must satisfy three conditions before issuing a prohibition: an officer must make a demand under the Criminal Code for a sample of the driver's breath, the screening device must register a warn, and the office must have "reasonable grounds" to believe the driver's ability is affected by alcohol.
"There was no evidence in the record to indicate that Mr. Wilson's ability to drive was affected by alcohol," he said.
"There was no evidence to suggest that a warn reading would affect Mr. Wilson's ability to drive. There was no evidence, either independent of, or in conjunction with, the warn reading that would suggest Mr. Wilson's ability to drive was affected by alcohol.
"On the whole of the record, there was simply no evidence upon which the adjudicator could reasonably conclude that Mr. Wilson's ability to drive was affected by alcohol."
Dley said the officer's decision was not defensible under the law and dismissed the driving prohibition.
Sam MacLeod, the superintendent of motor vehicles, said his office will review the ruling to decide whether to appeal.
"I can assure you that those who drink and drive will continue to be held to account with an immediate roadside driving prohibition."
He would not say, however, if he'll give police a directive to look for and record additional evidence before issuing roadside prohibitions.
Jeremy Knight, a law student who assisted Wilson, said a warn reading on a roadside screening device just isn't enough for officers to issue a driving prohibition.
"For the police officer to issue the notice ... there also has to be something else that informs his grounds to believe your ability to drive is affected by alcohol," said Knight.
Dley ruled Wilson and the superintendent of motor vehicles would pay their own court costs. (CHNL)
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