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Transportation Law - Motor vehicles and highway traffic - Liability - Licence suspension and cancellation - Conditions precedent -

Thursday, July 07, 2016 @ 8:00 PM  

Appeal by the Superintendant of Motor Vehicles from an order allowing the driver’s application for judicial review of the decision of an adjudicator upholding a 90-day driving prohibition. A police officer stopped the respondent after he saw him driving the wrong way on a one-way street. The officer smelled liquor on the respondent’s breath. Two breath samples taken with two approved screening devices produced fail readings. The driver was then served with a notice of driving prohibition and his vehicle was impounded. At the hearing before the adjudicator, the major issue was whether sufficient time elapsed between the respondent’s last drink and the first test. The adjudicator accepted that a breath sample had to be taken at least 15 minutes after the last drink in order to avoid a falsely high reading. The officer claimed that he took the first breath sample 10 minutes after he was told by the respondent that his last drink was five minutes earlier, and that the second sample was taken 10 minutes after the first. The driver alleged that he had lied to the officer and that he had been drinking in the car. The adjudicator found that the officer was diligent in following procedure and waited to provide the test until 15 minutes after the driver’s time of drinking. The driver sought judicial review of the adjudicator’s decision. The judge allowed the application finding that the officer could not reasonably have been confident that a total of 15 minutes had elapsed since the respondent’s last drink. The Superintendent appealed arguing that the reviewing judge erred in finding that a driver was entitled to two valid tests.

HELD: Appeal allowed. The reviewing judge’s conclusion was premised on the notion that the immediate roadside prohibition scheme entitled a driver to two valid tests. The scheme only required one reliable analysis. No issue was taken with the reliability of the second analysis in this case. As a result, the adjudicator’s decision upholding the prohibition was reasonable.