The B.C. Court of Appeal has reinstated a Superintendent of Motor Vehicles adjudicator's decision to impose a 90-day driving prohibition against a Prince George man who failed to pass a roadside screening test.
Alan Clark had contended that when he asked the RCMP officer who had pulled him over on the night of July 27, 2013 for a second try on a different approved screening device, he merely changed the mouthpiece and got him to blow into the same device for a second time.
In his report to the superintendent, the officer stated two different tests were taken and provided two different serial numbers for the ASD but did not check the box on the form to show what ASD was used for the second test.
But the adjudicator noted that the officer's evidence that six minutes passed between the first and second test was undisputed by Clark and while the officer was silent on the actions he took during that time, other evidence shows he did use a second device.
Specifically, in addition to the serial numbers, the officer's report included two certificates of a qualified ASD calibrator and references to the temperatures of the two devices. And that the officer told Clark he had a right to a second test on a different ASD "increases the likelihood that he turned his mind to the requirement," the adjudicator said in his decision.
However, in an April 2, 2014 decision, B.C. Supreme Court Justice Ron Tindale found that was not good enough, saying the adjudicator inferred the officer had retrieved a second ASD during those six minutes despite the fact the officer provided no evidence on the point and both Clark and the woman denied this occurred.
Given the facts of the case, the adjudicator should have explained why he did not accept the evidence from Clark and the woman. "This dispute in the evidence could only be resolved by a proper weighing of the evidence which was not done in this case," Tindale said.
On Thursday, a three-justice Court of Appeal panel unanimously disagreed with Tindale.
"The adjudicator did not analyze the evidence of the driver and the passenger (other than raising some questions about the reliability of the evidence of the passenger), but it cannot be concluded that he improperly ignored their evidence," Justice David Tysoe said in a reasons for decision written on behalf of the panel.
"The adjudicator set out their evidence in his report, and did not say anything to demonstrate that he did not take it into account."
