Driving Prohibition Case Results

Paul,
I am so grateful that you got my drivers licence back.  I can’t express what it means to me having you on my side.
J.J.

Re: 90-Day ADP Review (Client 1203)
Vancouver Criminal Lawyer: Paul C. Doroshenko
Following a motor cycle accident, client issued a Notice of Driving Prohibition by the police.  A review was conducted before the superintendent of Motor Vehicles.

DRIVING PROHIBITION CASE FACTS:
Ambulance attendants respond to a motor cycle accident, and report to the police that the driver was drunk.  Vancouver Police attend and breath samples are obtained over the legal limit.

ARGUMENT:
 “Your lawyer, Mr. Paul Doroshenko, submitted that the police officer’s report does not establish that you operated or had care or control of a motor vehicle.  He pointed out that there is no evidence of the time of the alleged driving, or evidence of a witness to the alleged driving.”

HELD:  PROHIBITION LIFTED
“In consideration of the evidence before me, I find that I cannot be satisfied that you did operate or have care or control of a motor vehicle on the date and time in question.” PROHIBITION REVOKED

Re: 8-Month Superintendent Driving Prohibition (Client 1018)
Vancouver Criminal Lawyer: Paul Doroshenko
Client received a Notice of Intent to Prohibit indicating that the Superintendent of Motor Vehicles was to prohibit the client from driving for 8 months.

DRIVING PROHIBITION CASE FACTS:
Following a significant motor vehicle accident, the driver provided breath samples over .08 mg%. The investigating officer then wrote to the Superintendent of Motor Vehicles to request that the Superintendent suspend the client’s driving privileges.

ARGUMENT:
 “The evidence does not support the officer’s opinion. The officer has attempted to utilize the Superintendent of Motor Vehicles to facilitate an abuse of process by conscripting the Superintendent to usurp the duties of the criminal justice system. The officer violated the client’s rights under the Charter of Rights and Freedoms. The Office of the Superintendent is not assigned the task of punishing people whom the court views as innocent.”

HELD:  PROHIBITION LIFTED
“I have considered your lawyer’s written submissions and reviewed your driving record. Your lawyer feels that the Constable intended to use the Superintendent to facilitate an abuse of process. Although I do have concerns as to your driving on this evening, I have not been provided with sufficient evidence that you were involved in a street race or that you were speeding. I have decided to cancel you prohibition from driving.” PROHIBITION CANCELLED



Re: 90-Day ADP Review (Client 1166)
Vancouver Criminal Lawyer: Paul C. Doroshenko
Client issued a Notice of Driving Prohibition by the Surrey RCMP.  A review was conducted before the Superintendent of Motor Vehicles.

DRIVING PROHIBITION CASE FACTS:
Following a collision, RCMP attend, and demand a breath sample from the driver for the presence of alcohol.  The driver refused to provide a breath sample.

ARGUMENT:
“In his sworn Report to the Superintendent the police officer states that you were read your Charter rights, given the official warning but that you refused to provide breath samples.  The Demand(s) for Sample(s) table on page 2 of the officer’s Report records a refusal, but the Time of Demand and Time of Refusal are blank, with only the Time of Result filed in as 00:28 hours”.

HELD:  PROHIBITION LIFTED
“Your lawyer, Mr. Paul Doroshenko, argues that evidentiary standards have not been met in that grid has not been completed and that there is no date or time of a demand recorded.  I agree with him and therefore, I am not satisfied that there is sufficient evidence to show me that a demand for your to provide a breath or blood sample was actually made.” PROHIBITION REVOKE



Re: 90-Day ADP Review (Client 881)
Vancouver Criminal Lawyer:Paul C. Doroshenko
Client issued a Notice of Driving Prohibition by the police.  A review was conducted before the Superintendent of Motor Vehicles.

Driving Prohibition Case FACTS:
Richmond RCMP pull over client after witnessing client swerve through intersection.  A roadside screening test was performed with a “fail” result.  The client was arrested and provided samples of breath indicating a blood/alcohol content of 170 mg per 100 ml of blood.

Argument:
“Your lawyer, Mr. Doroshenko, submits that without knowing the Times of the results there is no evidence if your results were 15 minutes apart and he questions the reliability and accuracy of the samples referred to by the officer.  He also states that just because 4 samples were taken is no reason not to produce a Certificate of Analysis.  Mr. Doroshenko also states there is no evidence of why or what a manual override is.  He submits the officer failed to provide an explanation of what it is and why he felt it necessary to use it.  As well, Mr. Doroshenko submits that you blew a total of six times and there is no explanation regarding the extra blows or why it was necessary.  He questions the reliability of the results given that you displayed little or no indicia and admitted to having only one beer.”

Held: Prohibition Lifted
“I find no conclusive evidence to rely on with regard to the time of your breath test result.  I am not satisfied on the evidence before me that your BAC (Blood/alcohol concentration) exceeded 80 ms% within three hours of driving.” Prohibition Revoked and fees refunded



Re: 90-Day ADP Review (Client 885)
Vancouver Criminal Lawyer: Paul C. Doroshenko
Langley RCMP issued client a notice of 90-day driving prohibition.  A review was conducted by Mr. Doroshenko before the Superintendent of Motor Vehicles.

DRIVING PROHIBITION CASE FACTS:
After driving through a stop sign, client pulled over by the Langley RCMP and arrested for impaired driving.  Breath samples obtained indicating a blood alcohol content of 150 mg in 100 ml.

ARGUMENT:
During your hearing your lawyer, Paul Doroshenko pointed out that the times in the officer’s report do not make sense.  He noted that the office recorded your time of driving as 12:56 a.m. but reported that he issued a breath demand to you at 12:05 a.m. and that you consulted with legal counsel at 12:35 a.m.

HELD: PROHIBITION LIFTED
Since the timing of the events as reported by Constable Grewal do not make sense, Mr. Doroshenko states that I cannot be satisfied that you operated or had care or control of a motor vehicle at 12:56 a.m. that evening and I agree.  PROHIBITION REVOKED



Re: 90-Day ADP Review (Client 896)
Vancouver Criminal Lawyer: Paul C. Doroshenko
Client issued a 90-day ADP driving prohibition for having refused to provide a breath sample to the Surrey RCMP.

DRIVING PROHIBITION CASE FACTS:
Following a collision at an intersection in Surrey, the client, who drives for a living, was arrested and presented to the breathalyzer.  She refused to provide a breath sample and because she was not given a reasonable opportunity to speak with a lawyer.

ARGUMENT:
Mr. Doroshenko pointed my attention to three cases R. v. Kowalchuk, R. v. Allison and R. v. Clancy. In Kowalchuk, a Saskatchewan case, Mr. Justice Matheson held that a constable denied the accused his right to counsel, because the constable called Legal Aid when the man said he wanted a lawyer, and never asked the accused which lawyer he wanted.  In Allison, Mr. Justice Long refereed to R.v. Kerr, an unreported decision in which Mr. Justice Bruce held that the police pre-empted the accused’s right to counsel by waiting only 2 to 4 minutes after he left a message with his lawyer, then calling Legal Aid on his behalf without telling him that he could call his lawyer again, or any other lawyer, or asking if he wished to speak to Legal Aid.  In Clancy, an Ontario case, Mr. Justice Long Held that the onus upon the Crown to show a waiver of a right is very high.  As the accused in this case consistently asked for a specific lawyer, Mr. Justice Long held that he had not waived his right to a lawyer.

Mr. Doroshenko pointed my attention to the fact that there is no mention in Constable Moar’s notes of giving you the supplementary Charter warning, which is required when an accused first chooses to exercise, and then waives , their right to counsel.

HELD: PROHIBITION LIFTED
Based on the evidence before me, I am satisfied that it is more likely than not that you were denied a reasonable opportunity to contact the counsel of your choice. 
PROHIBITION REVOKED



Re: 90-Day ADP Review (Client 1134)
Vancouver Criminal Lawyer: Paul C. Doroshenko

DRIVING PROHIBITION CASE FACTS:
After being stopped for unusual driving, the police made a breath demand and deemed the client’s behaviour as constituting a refusal of the breath demand.

ARGUMENT:
Your lawyer argued that you were entitled to refuse the demand, because it was not lawful.  He argued that the ASD demand was not lawful because it was made 10 minutes after the time of driving (indicated on page 1 of the Report as 2:40 a.m.)  He pointed my attention to R. v. Cleaver, in which Mr. Justice Dhillon stated that the detention of a driver by the police for 8 to 11 minutes before an ASD demand was made was contrary to the Charter of Rights and Freedoms.  Mr. Justice ruled that the ASD result could not be relied on, and could not form the basis for reasonable and probable grounds to demand a breathalyzer test.  I acknowledge that I am bound by this decision.

HELD: PROHIBITION LIFTED
Based on the evidence before me, I cannot be satisfied that a lawful demand was made.  I therefore find that it is more likely than not that you did not fail or refuse to comply with a demand.  PROHIBITION REVOKED



Re: Administrative Driving Prohibition Review (Client 613)
Vancouver Criminal Lawyer: Paul C. Doroshenko
Richmond RCMP issued the client a notice of 90-day driving prohibition after obtaining breath samples indicating the driver was over .08.  A review was conducted by Mr. Doroshenko before the Superintendent.

DRIVING PROHIBITION CASE FACTS:
After rear ending a car that was stopped at a red light, the client drove from the scene until colliding with a post.  He was arrested for impaired driving. Breath samples indicated a blood-alcohol content of 170 mg in 100 ml.

ARGUMENT:
Lawyer Paul Doroshenko argued that the report is illogical.  The Constable marked the time of driving at 22:27 hours.  He stated that he read the Approved Screening Device demand at 22:22 hours. 

HELD: PROHIBITION LIFTED
Nowhere else in the report is the time of driving recorded.  Consequently, I do not find I have a reliable time of driving.  Therefore I am not satisfied that you had care and control of a motor vehicle.  PROHIBITION REVOKED



Re: 90-Day ADP Review (Client 582)
Vancouver Criminal Lawyer: Paul C. Doroshenko
Vancouver police issued client a notice of 90-day driving prohibition after a collision and criminal investigation.  Mr. Doroshenko conducted the review.

DRIVING PROHIBITION CASE FACTS:
The client’s vehicle hit the rear bumper of a vehicle stopped in traffic.  Vancouver police attended and arrested the client.  At the police station, the client refused to provide a breath sample. 

ARGUMENT:
Your lawyer argued that there is no evidence in the police report that a demand existed under section 254 of the Criminal Code.  He stated that there is some indication that you were asked a question, however, it is not in the form of a proper demand.  Further, he argued that there is no evidence of which demand would have been made, or even a time of the demand.

HELD: PROHIBITION LIFTED
I agree with your lawyer.  PROHIBITION REVOKED



Re: 90-Day ADP Review (Client 757)
Vancouver Criminal Lawyer: Paul C. Doroshenko
Vancouver Police issued client the second notice of 90-day driving prohibition in a year.  Vancouver Lawyer Paul Doroshenko disputed the prohibition before the Superintendent of Motor Vehicles.

DRIVING PROHIBITION CASE FACTS:
At 11:51 p.m. the client is observed in her Audi driving slowly and weaving.  She was arrested for impaired driving and she refused to provide a breath sample.

ARGUMENT:
Your lawyer, Paul Doroshenko, states that the officer’s sworn report indicates that the time of driving was 11:51 and the ASD demand was at 11:58.  He states that the breath demand in the officer’s report is at 13:18, which is one hour after he formed his reasonable and probable grounds.  Mr. Doroshenko submits that you were entitled t refuse the demand.

HELD: PROHIBITION LIFTED
I am satisfied that you did not fail or refuse to comply with the officer’s breath demand.  PROHIBITION REVOKED



Re: 90-Day Administrative Driving Prohibition Review (Client 718)
Vancouver Criminal Lawyer: Paul C. Doroshenko
Vancouver Police arrest the client after he struck a pedestrian.  He was issued a notice of Administrative Driving Prohibition.  Paul Doroshenko disputed the prohibition and conducted the hearing.

DRIVING PROHIBITION CASE FACTS:
Police arrest the client after he struck a pedestrian while driving on Cambie Street in Vancouver.  After providing breath samples of 130 mg% and 120 mg% he was charged with impaired driving and issued a 90-day ADP driving prohibition. 

ARGUMENT:
Your lawyer, Paul Doroshenko, pointed out that there is no specific evidence as to whether you consumed any alcohol between the time of the accident and the time of the police arriving on scene.  Your lawyer suggested there was evidence that you may have consumed some beer after the accident occurred.

HELD: PROHIBITION LIFTED
I find that there was a possibility that you drank some beer after the accident, which might account for the substantial amount of your BAC reading.  PROHIBITION REVOKED



Re: 90-Day Administrative Prohibition (Client 743)
Vancouver Impaired Driving Lawyer:  Paul Doroshenko
Whistler, B.C. RCMP issued a Notice of Driving Prohibition (ADP).  Mr. Doroshenko conducted the review.

DRIVING PROHIBITION CASE FACTS:
Following a civilian complaint, Whistler RCMP attend an accident scene where the client has allegedly driven into a pole.  Breath samples indicate 160 mg per 100 ml of blood.

ARGUMENT:
Your lawyer, Paul C. Doroshenko submitted there is no evidence of when you operated or had care or control of a motor vehicle.  He submitted that the officer's report only indicates that he arrived on the scene at 1:30 p.m.  There is no evidence of when the accident actually
occurred.  The report indicates that you explained how you crashed your vehicle and that a witness pointed you out as the driver.

HELD: PROHIBITION LIFTED
I agree with your lawyer, that there is no evidence of when you were driving or in care or control of the vehicle.  The Report indicates that the officer arrived on scene at 1:30 p.m. However he did not provide any evidence of the time of driving.  Without a time of driving or care or control, I am unable to determine if your blood alcohol concentration exceeded 80 mg % within three hours of your operation or care or control of a motor vehicle.  PROHIBITION REVOKED



Re:90-Day ADP Prohibition (Client 886)
Vancouver Impaired Driving Lawyer:  Paul Doroshenko
Client issued a Notice of Driving Prohibition by the police.  A review was conducted before the Superintendent of Motor Vehicles.

DRIVING PROHIBITION CASE FACTS:
Richmond RCMP follow client for 2 blocks before pulling him over. Following an admission of having consumed 2 beers, the officer demands a breath sample to an approved screening device.  The client refuses to blow.

ARGUMENT:
"Your lawyer, Mr. Doroshenko, submitted that in the Report to Superintendent the officer has failed to incorporate the narrative, contrary to the rule in Matous v. Superintendent of Motor Vehicles.  Alternatively, Mr. Doroshenko has provided me with R. v. Smith with respect to the issue of whether the officer had sufficient evidence to form the suspicion that you had alcohol in your body."

HELD:  PROHIBITION LIFTED
"In the decision of Matous v. Superintendent of Motor Vehicles et al 2003 BCSC 1531 Madame Justice Morrison held that an unsworn narrative ought not to be considered as other relevant information, even when giving it less weight.  In the circumstances where there is not
indication in the sworn report that the contents of any additional Report are incorporated, the adjudicator cannot consider the information.  Therefore I cannot consider the contents of the narrative."   Prohibition Revoked and fees refunded.