A Prince George man will get a second chance to appeal an immediate roadside prohibition.
B.C. Supreme Court Justice Ron Tindale ordered a new hearing before a Superintendent of Motor Vehicles adjudicator on Wednesday for Alan Clark, who was issued a 90-day prohibition in July 2013 after an RCMP officer pulled him over as he was leaving a local bar.
At issue was whether the officer used a separate approved screening device when Clark asked for a second test or simply replaced the mouthpiece on the one he had used the first time.
In an affadavit, a woman who was with Clark at the time testified the officer used the same ASD for both tests and, at no time, returned to his car to retrieve a second device. And in his affadavit, Clark also disputed the officer's contention he used two different ASDs, maintaining he just changed the mouthpiece and the same device was used again for the second test.
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.
But 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.
