Java defence fails to overturn screening result in 90-day driving ban

A man handed a 90-day driving ban after failing a roadside screening test in North Vancouver has failed to convince a judge the test result should be overturned because he was drinking hot coffee before blowing into the device.

According to a B.C. Supreme Court decision handed down last month, Marko Juhan Vossi was handed the driving ban by a police officer after failing a roadside test for impaired driving in North Vancouver in October 2017.

Since then, Vossi has petitioned both the Superintendent of Motor Vehicles and the courts to overturn the decision.

But following a judicial review in February, a B.C. Supreme Court justice declined to do that.

According to the justice’s written decision, events first unfolded on Oct. 15, 2017, when an off-duty police officer observed Vossi driving erratically just after 6 a.m. in Burnaby.

The off-duty officer followed Vossi’s vehicle as it drove west and continued over the Second Narrows Bridge, according to the judge.

Vehicle observed nearly missing barrier twice

During that time, Vossi was observed “nearly missing a barrier twice,” “swerving outside of his lane,” and “rapidly accelerating and decelerating,” wrote Justice Warren Milman.

The off-duty officer brought those actions to the attention of a North Vancouver RCMP officer, who stopped Vossi on Cotton Road at about 6:17 a.m.

Vossi was “observed to have bloodshot eyes and slurred speech, and had trouble taking his driver's licence out of a cellphone pouch,” as well as having breath that smelled of alcohol, according to the decision.

“He refused to answer when asked how long ago he had been drinking.” Vossi then failed two roadside screening tests for blood alcohol.

Hot coffee could skew results, driver argued

In later arguing against the driving prohibition, however, Vossi said the results were unreliable because he had just been drinking coffee – bought from a drive-through right before he was stopped by police – and “the temperature in his mouth was elevated to the point that the device may have overstated his (blood alcohol concentration).”

In an affidavit, Vossi stated he had last consumed alcohol the night before but had bought coffee and a breakfast sandwich at McDonald’s just before he was stopped.

Vossi said he had continued to sip the coffee until just before his first roadside screening device, adding that if a person’s mouth is higher than 34℃, the roadside screening device could overstate the blood alcohol content.

Following a hearing in November 2017, a delegate of the Superintendent’s office upheld the driving ban and associated sanctions, after finding Vossi’s account of drinking coffee right before providing the breath samples was not credible.

That adjudicator pointed to the police officer’s notes as not noting any stop at McDonald’s. The adjudicator also stated it was unlikely Vossi would be “casually sipping and drinking coffee” after being told he was under investigation for impaired driving.

Vossi asked the court to review the decision.

Judge says it's unlikely driver stopped at drive-thru

But while Milman found some of the adjudicator’s reasons for rejecting Vossi’s coffee claim were “problematic,” on balance the likelihood that Vossi had stopped at McDonald’s was remote, given that the events of that morning “took place in a very compressed time frame.”

Milman also noted Vossi didn’t dispute the various observations noted by police. “Those notes strongly suggested that Vossi was in an impaired state at the time he took the test,” wrote the judge.