A Kelowna woman will get another shot at appealing her 90-day roadside prohibition.
After receiving the suspension earlier this year on April 1, Gabriel Jordan Mason appealed to the Superintendent of Motor Vehicles for a review. The appeal was denied and the suspension, upheld.
However, she didn’t give up, moving the case to court.
In an Oct. 30 ruling, BC Supreme Court Justice Denis Hori ruled that Gabriel Jordan Mason’s appeal on the matter should not have been dismissed by the adjudicator due to inconsistencies in the police report by the Mountie who administered the roadside test.
The decision states that an officer pulled Mason over after she ran a red light. The officer suspected Mason may have been impaired and decided to give her a breathalyzer test. After four attempts to provide an adequate breath sample, the device registered a ‘fail’ test result.
Mason argued that the narrative outlined by the officer was impossible, stating that his report puts all four attempts of the test within the same minute.
Hori wrote in his decision: “The adjudicator did not analyze or explain how the police officer could make the ASD (approved screening device) demand at 23:41 hours, retrieve the ASD device from his police cruiser, have the petitioner make four attempts to provide a breath sample, explain the proper method to provide the sample between the first three attempts and do all of that within the minute of 23:41 hours.”
Mason also claimed the device was broken, saying it didn’t present error messages after her first three unsuccessful attempts to provide a breath sample. This was dismissed by the first adjudicator using “circular reasoning,” Hori wrote.
“… The adjudicator concluded that the ASD was working properly because there was no persuasive evidence that the ASD was malfunctioning and because it ‘accepted a valid fail reading’.”
It was “not logical,” Hori wrote, for the adjudicator to accept that because the device produced a ‘fail’ reading it was working properly.
Hori ordered that the matter be heard again by a different adjudicator at the Superintendent of Motor Vehicles.
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