When you consider that texting and driving is on-par with drunk-driving in terms of reduced hazard perception abilities and increased reaction times, my preference is for the due care VT.

Next time you get stopped for posting to RS while driving, you be sure to tell the cop that. "No no, not the $167 one - I want the $368 one! Come on bitch, write it up!"

:failed:

I don't use my phone while driving.

Sober B.C. senior fined for drunk driving

Article

This has nothing to do with the drunk-driving laws that were "struck" down or put on hold by the new ruling ..... BUT....

If this story holds to be true...BRUTAL!!! Even a 12 year old WOULD expect an 82 year old person to have lung issues, or not to have the capacity to blow the required breath into an ASD, much less an elderly lady that has been standing in the cold for a length of time. Even having documentation of 0% BAC from the hospital meant nothing in her appeal....so much for OUR government and the OSMV! There are MANY appeals out there or appeals that have been put forward to the OSMV with proper evidence and reasons......the "adjudicators" don't give a shit!!! (sorry about the language) I hope this incident bites them in the butt.....because they should NOT have the "all godly" powers that they have now! Every citizen has their right to reasonably "discuss" an incident, not have a violation "steam rolled" on to their record because of these "all powerful" powers!

This is a prime example of the "trial" occurring on the roadside..an unfair advantage to the citizen. Even the corporal at the detachment could NOT do anything about the VT, which he thought was wrong........it was out of his hands. Where does that leave this citizen? In the hands of the OSMV, not a "likeable" position!!!

Well, it is the lack of due process shown in this example that was why the harsh penalties were struck down.

Soundy: The solution? Replace Shirley Bond with an SG who actually has legal experience for one.

Well, not really. She was cited for "failing to blow"....the same as refusing to blow which in itself can carry an impaired charge. The issue in this case is when the appeal was put forth to the OSMV and it was flatly denied DESPITE evidence important to the case. The evidence....age, conditions during the attempted roadside test, a lung impairment that prevented her from providing a breath sample AND documentation from the hospital saying that there was 0% BAC. This type of appeal denial is common by the OSMV right through the whole administrative process of drinking and driving, from the 24 hour prohibition to the newer administrative sanctions. They just have a big rubber stamp....NO....NO..NO...NO.........

And, in a way it is. This failure of the OSMV and it's adjudicators to take such evidence into consideration created the "lack of due process" in regards to the impaired administrative sanctions by not PROVIDING any due process!!

I don't know how many have seen this...but this is the "other" side of the story with the 82 year old woman in Cranbrook.

Setting the Record Straight in Cranbrook

As we all know, two sides of every story will have discrepancies (usually) when compared to each other.

One that I notice is the "timing" in regards to the hospital blood tests and the time of the beginning of the investigation by police. The police report mentioned the blood test was "hours" after the incident, while the lady has documentation to show that it was less than an hour after the contact with police. Another thing, how can they "calculate" her BAC backwards, IF the blood test shows 0% BAC?

All the arguments aside as to if she had to stand out there for an hour...wasn't allowed or was allowed to use the washroom.....etc., it boils down to this. The OSMV has to develop a fair appeal process. Even BC Solicitor General, Shirley Bond is wondering. Here is an excerpt from an article:

Review ordered into drunk driving fine of Margaret MacDonald who couldn't provide breath sample | News | National Post


Now, to be fair (and I don't believe I'm doing this lol )......the adjudicator of the OSMV that made the decision actually was not in the wrong. This was his/her reason as found in this article:

Review ordered into drunk driving fine of Margaret MacDonald who couldn't provide breath sample | News | National Post

Yes, "based on the evidence before me"......as the 82 year old woman neglected to bring the blood test evidence etc. with her to the oral appeal. The adjudicator was following the "book". But this is where a change (to make this appeal process fair) could happen. The minute the 82 year old woman brings the details up (pneumonia, corporals letter, and hospital test), why couldn't the adjudicator allow another "meeting" to bring these, THEN make his/her final decision? Many of us citizens are not lawyers and can be very unfamiliar with the processes involved......this should be taken under consideration.

One more thing, the OSMV , more often than not, has a line in their denial reports saying "...I find the witness of the police officer to be more credible than yours...". Then why didn't the following action have any effect on the situation?:

and

This is why in our legal system, this all gets sorted out in the courts.

No, wait.. not any more.

If you know the rate of metabolism and you know that at 3am the BAC reading was 0%, it wouldn't be too hard to say that at midnight the BAC would have to be xx%.


My grandmother had lung problems as a result of asbestos exposure during WWII. I don't know how long and hard you have to blow into the ASD, but she probably wouldn't have been able to provide a suitable sample either.

The RCMP "Setting the Record Straight" doesn't seem to state anything different than MacDonald's story, it only try's to bring doubt by massaging the words to be more favourable towards the force, without actually stating any new or concrete facts. Good PR team they got though.

She already stated she was out in the cold and with the RCMP for a couple hours, and then an additional hour for her to get to the hospital. There are the hours that any PR mouthpiece could easily spin to word "hours" and make it look like she unduly delayed in getting to th hospital, when in fact it was the RCMP themselves delaying her.

Fortunately, she makes it super easy to corroborate her story because she gives times, and hopefully will even have a cab receipt, or a credit card charge.

As far as the calculation on BAC.

Given a median absorption rate of 15 mg % per hour, you would need approximately 3:30 hours to reach 0 BAC if you were intoxicated exactly at .5 at your "peak". Most people vary between 13-18, Again, there are so many factors including the type of alcohol, quickness of ingestion, absorption, metabolism, it is impossible to pinpoint, but it would be in the range of 3-4 hours.


That said, the police state;
She states that she drove the wrong way a few blocks from her home, around 12:30AM. Let's say she arrived home 15 minutes later? The police arrived 15 minutes after that (which is a damn good response but we'll give them the benefit of the doubt.)

That puts an initial ASD test at 1AM. For her to WARN at that time, she would need to be at .5 then.

She stated she arrived at the hospital an was administered the test at approx 3:50AM.

Quick math - 2:50. A SHORTER time frame than what would be required to eliminate all the alcohol.

So, any body could be said to have had a BAC of .05 3.5 hours previously to being stopped? You see what I'm getting at? I would assume that you need to at least show some % of BAC to anyone to even think you've been drinking! So, the fact she had a 0% BAC eliminates drinking as a factor not something the officers knew at the time of the stop.

The thing that this lady has to "beat" though is not the BAC level, as that is not what she is charged with. She is charged with failure to provide a breath sample....and that would have to be proven medically.....not impossible!

Numerous attempts to gain a useable breath sample were unsuccessful and she was issued an Immediate Roadside Prohibition for refusing to provide a sample. Some members of the public attempt to thwart the ASD (Approved Screening Device) by blocking the tube with their tongue, or breathing air in rather than blowing air out. In this case, members observed both of these techniques.


Yep, a bit more to the story. As a matter of interest a 10 year old boy with asthma who was using inhalers and saline/steroid mask treatment was able to provide suitable samples for a RSD. Never did ever meet someone who was not on an oxygen mask with tubes up their nose, who was medically incapable of providing a suitable sample. You don't have to blow hard but you need to get some deep lung air.


I'm not saying the lady did not have a medical condition that prevented her giving a suitable sample in 15 tries, nobody but her and her doctors know that. To go with that many "last chances" is unheard of in my experience as an operator. If the first sample is not suitable you usually give a second attempt after warning them that they must provide or be charged. If it doesn't work then the mouthpiece is seized, a new one installed and maybe a 3rd attempt is permitted....but 15 times? Just because somebody is old does not make them any less unlikely to try to avoid punishment for a crime, nor does being young, a visible minority, handicapped etc. Police deal with all of these groups and you find as many bad guys/gals in their groups as you do when people are not included in the groups.


There is a lot more to this story and the media is running with her side because it sells papers and gets them listeners/viewers. It bleads so it leads. If it was a 22 year old logger from Sayward who went thru what she did it would never hit the headlines. They are using her for their own purposes. If she was wronged then she deserves restitution and apology, if it went the way the Police media release says then that should not be forthcoming. Don't expect the media to apologize if the Police side happens to be the truth. You might remember a story from a couple of months back where the bad uncaring Cops terrorized a man who was rushing his wife to hospital and refused to allow him to get medical attention for her. The media screamed for the Cops scalps for the way they treated her. Seems that it came out later that the husband was a liar, the "facts" were wrong and the media couldn't care less about apologizing to the Cops for what they did to them.

I agree with you Zulu, on the newspaper angle of things....it's called sensationalism. In my first post in this thread I prefaced what my opinion was by saying "if this is true"..... The facts need to be brought to the surface first.

This whole case boils down to the refusal (if in fact that is what she did), or her inability to provide a breath sample. It has nothing to do with "a sober woman forced to give a breath sample". All the blood test result does is proves she wasn't drinking and is a fact AFTER the roadside investigation was completed. This blood test would have been pertinent IF a breath sample was attained and for some reason the ASD SHOWED an BAC of some level. At the time of the stop, the officers had every right to demand a breath sample.

It actually quite surprises me that the RCMP even responded to this publicly as it is still "in the works", so to speak. THAT happens rarely.....

A couple things kind of bother me though.

1) Why did the officer in charge of the detachment, after a cursory investigation, offer to help Margaret with the appeal process, and even offer to pay for the initial $200 fee due to the fact he couldn't rescind the immediate roadside prohibition?

2) In the RCMP response, why did they bother mention anything about BAC, as it has nothing to do with the "case". How can they say:

Quote:

When she attended the RCMP detachment in the following days and provided evidence of her blood sample from hours later that evening, a calculation was done and it was determined that had a breath sample been provided, the ASD would have registered either a 'Warn' or a 'Pass' reading but would not have read a 'Fail'.

If the BAC of the blood test shows 0%, should they not have said.......IF she had been drinking and had provided a breath sample the ASD etc etc. 0% BAC only proves there is NO alcohol in her system, it doesn't prove that there MIGHT have been! :)

3) Remember, Margaret had been "quietly seeking an apology and reimbursement of roughly $6,000 out-of-pocket expenses as a result of her traumatic May 22 experience". This is NOT an action of a "guilty" party trying to scream innocence, in my opinion. This was brought to the medias attention only after she was facing further delays.

4) The criminal code regarding impaired driving allows the officers to attain a blood sample if a proper breath sample cannot be given by the "suspect". I believe, correct me if I'm wrong, the administrative laws DON'T have a provision for that.

5) Why is Shirley Bond jumping into this so quickly? And she's quite quick to jump on the OSMV...which, I hope, brings the review process to the forefront.

For what ever happened at the roadside "meeting" between Margaret and the RCMP, my furor is over the way it was handled by the OSMV. 95% of the officers out there ARE trying to do a good job...it's the other 5% that ruin it for all of us, both the public and the police. I'm not saying these particular officers are part of that 5%, but it's that 5% that makes it important that we have a fair and "proper appeal process" in place, and it isn't. To put the "courts" job into the hands of the OSMV is the issue with these new administrative impaired laws!

On a side note:

I wish the RCMP and other police services would make public the shit and abuse they have to go through! Some of us (citizens) should realize the frustration police have in dealing with "defense" lawyers that can make an officer feel like..."what the hell am I doing this for then?????" They have to do deal with this constantly, many of us only have to deal with our frustration with the system once in a while! Look at some of the attitude towards the police on here! :)

Only the "bad guys" (yes, those of us who have broken or are breaking the law) will have the "us against them" attitude regarding police. The rest of us should have the "thanks for the help" attitude! :D

She obviously felt the pressure.

Yep... right up until their precious riceburners are stolen, broken into, or vandalized... when Johnny Law is their best friend. Well, unless he doesn't drop everything and find that missing car immediately... how dare that murder investigation take precedence!

1) Why did the officer in charge of the detachment, after a cursory investigation, offer to help Margaret with the appeal process, and even offer to pay for the initial $200 fee due to the fact he couldn't rescind the immediate roadside prohibition?

Maybe because he could see the s**t storm (thanks Mr Lahey) about to drown everybody and he wanted to see as few drowned as possible...or maybe he felt sorry for an 82 year old lady who probably didn't have a lot of money and was in over her head and wanted to help her.....or maybe a combination of both....or maybe something else? The Cops are dammed if they try to help her and dammed if they did not. Either way they look bad, maybe even in spite of the true facts of this event.

Why would someone who has been drinking even risk getting a blood test done?

And didn't the original article state that the woman first drove through a roadblock where an officer deemed her to be sober?

I have a question, because I don't know! lol

How can a police officer detect if the mouth piece is being blocked by the tongue? Might be a simple answer, but just curious. I can see how someone is sucking on the mouthpiece, by watching the chest rise.....perhaps the lack of the chest falling indicates no attempt at blowing?

I suppose he could look down the open end of the mouth piece to see the tongue blocking the tube.

So if they weren't following proper procedure and the RCMP was unusually quick to publish "their side of the story", it makes it sound like even the "official" version of the story has more than one side, so to speak.

Just watched an interesting video on an interview with Margaret, the 82 year old lady. An interesting twist.......she stated that she has the utmost respect for the RCMP(Her son is an RCMP member!!! ) and doesn't even hold what happened to her against the young officer that tried 15 times to get her to blow properly. According to her, the young officer said "I should get someone else down here, I may be doing this wrong". So, this whole thing may have began quite innocently and "snowballed".

If he was properly trained to use the RSD, the problem of people not giving a proper sample is covered fully. If he can't do something as simple as get someone to blow into a clear plastic tube and "box" and trouble shoot why the air is not going in, he should not be testing people on it. You have to demonstrate how to use it correctly many times on the course or you should not pass.

Simple to hear that air is not going in, simple to see if the subject is blocking the tube as their cheeks puff out and the air does not go into the instrument. If it goes in correctly the cheeks deflate. If the first couple of samples do not go in you seize the mouthpiece, install a new one and try again. If you have any further doubts, insert a new mouthpiece and blow a sample of your own breath to show it is working and how much air is needed for a sample.

I've been hearing more drunk-driving radio ads now. "Good news for drunk-drivers, we can no longer impound your car, blah, blah... but we will arrest you and charge you criminally"

I think most people would rather lose their car for a month than be given a criminal record. It makes me wonder - if the old penalties were given the same airtime as the new ones were, don't you think we'd see a drop in drunk-driving cases?

You'd think that... but people are dense and don't think about the long-term effects of that possibility (especially with all the competing ads for lawyers promising to get you off drunk-driving charges). Losing your car RIGHT NOW, even for a month... THAT has an immediate, tangible impact that EVERYONE can relate to. Of course, all the media attention over the changes, and naturally the whining about it all being "unconstitutional", has helped raise the profile of the whole thing, too.

Where have you been? The old penalties were consistently given plenty of airtime, especially around Christmas, with the the wall-to-wall CounterAttack ads, ranging from the deadly serious to the downright inane ("You'll get a free ride in a police car! You could lose your job! Your friends, your family, EVERYONE WILL KNOW!" - in your best over-caffeinated informercial announcer voice).

Although I particularly liked the one that had the police, fire and ambulance vehicle all lined up, lights flashing, with the voiceover, "Look for our colourful Christmas light display..." :D

Safe to say that the people that are willing to drive drunk, will drive drunk regardless of the penalties?