The B.C. Supreme Court has thrown out a Motor Vehicle Act conviction against a Novice driver who was accused of drinking before getting behind the wheel.
The landmark decision comes almost two years after Khalid Almardy was first stopped by police in downtown Victoria in October 2017. An officer ran his plate, saw Almardy was a Novice and pulled him over after seeing there were four people in the vehicle.
A Class 7 licence only allows for one passenger, unless a supervisor aged 25 or over with a valid licence is present.
While Almardy was stoped, the officer claims he detected the smell of alcohol on the driver’s breath. Almardy told police it had been five hours since his last drink, then allegedly blew a 0.06 BAC on a roadside breathalyzer test.
The legal limit in Canada is 0.08, but a Class 7 licence requires a zero blood alcohol level. Almardy was given a 24-hour driving prohibition and an impound notice.
A B.C. provincial court judge convicted the driver of three offences under the Motor Vehicle Act in July 2018, including failing to display his "N" decal and violating restrictions on his licence.
In his reasons, the judge said Almardy did not offer evidence to prove his innocence to the officer, others in his vehicle appeared intoxicated, and the officer detected alcohol on his breath. The breathalyzer results and his admission that he had been drinking prior to being pulled over were thrown out because the officer did not tell Almardy his Charter rights.
"He wouldn’t have needed to Charter him just for the breathalyzer, but when it came to court in order to rely on that sample he provided, he would have had to," explained Brandon Moscoe of Acumen Law.
"There really was no evidence of any alcohol in his body beyond what the officer may have smelled."
The conviction was appealed in B.C. Supreme Court last month. The defense argued the previous judge erred in relying solely the constable’s testimony that he smelled alcohol, and that Almardy had the right to remain silent and his guilt could not be presumed based on his passengers' actions. Justice J.A. Power agreed, acquitting Almardy of the Motor Vehicle Act charges.
Moscoe said he’s satisfied with the outcome. He argued officers already have a lot of leeway, only needing suspicion to ask for a sample to begin with.
"Just relying on that suspicion to actually convict someone of an offense is really a step too far," he said.
The CEO of Mothers Against Drunk Driving says he’s disappointed in the decision.
"Somebody that was doing all the wrong things got off on a technicality which is very unacceptable," said Andrew Murie.
He believes the ruling sends the wrong message to B.C.’s young drivers.
"We could have been talking about a different story. We could have been talking about four fatalities instead of someone’s rights being violated. There’s zero BAC under novice drivers, it’s to keep them safe."
In a statement, B.C.'s Ministry of Public Safety said it "will take some time to consider the Supreme Court decision." The ministry said it "has not yet made any determination on whether any further action is warranted in this case."
