A man who was issued a 90-day roadside suspension for refusing to blow a Breathalyzer sample for a West Vancouver police officer has had his driving ban tossed out and another hearing ordered.
B.C. Supreme Court Justice Nigel Kent ruled the adjudicator for the superintendent of motor vehicles hadn’t properly considered John David Marton’s evidence that he’d asked the officer for a “last chance” to provide the sample and been ignored. The judge also ruled the adjudicator hadn’t considered evidence of witnesses who swore Marton hadn’t been drinking at all on the night he was stopped.
Marton was stopped by a West Vancouver police officer around 12:45 a.m. on Marine Drive on April 6 last year, after the officer saw him drive through a yellow light.
According to the officer, Marton at first refused to roll down the window. When he did, the officer said he smelled alcohol on Marton’s breath. But Marton said he didn’t need to provide a breath sample, because he hadn’t been drinking.
He told the officer he was a professional musician coming home from a gig in West Vancouver and had been around people who had spilled their drinks at the performance — suggesting that might account for the smell of alcohol.
Another musician who performed with Marton that night provided an affidavit saying Marton only drank water during the evening.
After the officer told Marton he would get a 90-day suspension if he didn’t blow into the device, Marton agreed to provide a sample, according to court documents.
But the officer said Marton only lightly blew into the Breathalyzer and put his teeth in front of the mouthpiece.
In making his decision that the hearing should be repeated, Kent wrote that while standards for having “reasonable cause” for a breath demand are relatively low, the evidence of other witnesses should also have been considered.
