A Kamloops man's attempt to overturn a 90-day administrative driving prohibition for an incident in Valemount earlier this year failed to win the support Thursday of a B.C. Supreme Court Justice, who rejected an argument there was not enough evidence to levy the suspension.
Paulo Spina contended that a Superintendent of Motor Vehicles adjudicator should not have issued the prohibition because there was an "evidentiary gap" due to the absence of a certificate of analysis and a missing page on breath ticket submitted by Valemount RCMP.
Spina had been taken into the Valemount RCMP detachment on Feb. 26 when shortly before 11 p.m. an RCMP officer saw him enter a vehicle in the parking lot of the Valemount Hotel and, after driving around the block, saw him get out of the vehicle at another location near the parking lot's exit.
Spina was "meandering" as he walked toward the bar and when he was stopped, the officer noticed an overpowering odour of liquor on his breath, watery and bloodshot eyes and rapid and nervous speech.
When asked to turn over his keys, Spina became combative and defensive and when the officer demanded he provide a breath sample, Spina refused, stating that "in his mind he was not driving," Justice G. Bruce Butler wrote in a reasons for judgment.
Spina was arrested and brought into the detachment where he repeated his refusal. When the officer completed the paperwork for a 90-day administrative driving prohibition for the refusal, Spina changed his mind.
A qualified technician was still on site and according to a report provided to the adjudicator Spina blew a number of times. Spina stated in a sworn statement also provided to the adjudicator that he provided two samples.
Usually, when a breath analysis is administered by a qualified technician, a certificate of analysis is competed setting out the results and confirming the tests were administered properly on equipment in proper working order.
But no certificate was provided to the adjudicator. The evidence was limited to the report, in which details of the analysis were sparse and the particulars for any demands for samples were left blank, and two breath test tickets.
The tickets showed Spina with blood-alcohol levels of 100 and 110 milligrams of alcohol per 100 millilitres of blood 90 minutes and two hours after he was arrested. The tickets were identified as pages two of three and three of three, but no page one of three was provided.
However, Butler found there was still enough evidence to uphold the suspension, which was issued March 7. In part, Bruce noted the legislation gives the superintendent discretion to proceed with a hearing even if all the documents have not been received.
Moreover, Butler found that the adjudicator is not bound by the normal rules of evidence that would be applied to court-level hearings of drunk driving cases where beyond reasonable doubt is the test. Instead, Butler found such review hearings are civil in nature with the issues decided on a balance of probabilities.
"In this case, there was evidence in the report and breath tickets that, if accepted, was capable of supporting the adjudicator's finding that Mr. Spina's [blood-alcohol level] was over .08 within three hours of operating or having care or control of a motor vehicle," Butler wrote in a reasons for judgment. "Accordingly, her conclusion was not unreasonable and should not be interfered with by this court."
