A B.C. man wants B.C. Supreme Court to overturn a decision upholding a roadside prohibition after a breathalyzer test, saying a review of that ban was flawed.
The issue: burping possibly affecting how a roadside screening device works correctly.
Nitesh Prakash filed a petition with the court Dec. 9 naming the superintendent of motor vehicles and the provincial attorney general as respondents.
Prakash wants the court to overturn an immediate roadside driving prohibition or an order sending the case back to the superintendent.
He claims an earlier superintendent’s adjudicator decision relied on an irrational chain of analysis.
“She generally accepts the evidence that Mr. Prakash was burping during the sole ASD test, that he suffers from acid reflux, takes medication for that condition, and was experiencing symptoms at the relevant time,” the petition said.
The petition said Prakash was served the prohibition to commence immediately Oct. 24, 2024.
'Odour of liquor'
The police report called Prakash “talkative and cooperative."
Still, the constable noted he stopped Prakash’s car and “instantly detected an odour of liquor coming from the vehicle.”
When asked when his last sip of alcohol was, “Prakash replied ‘one minute ago,’” the claim said of the report.
The constable read the demand for a breath sample, which he would take using an approved screening device or ASD. The constable had to wait an observation period to do so.
Then, Prakash burped.
The officer explained there needed to be 15 minutes without burping and that, having been read the lawful demand, Prakash was required to provide an adequate breath sample. Failure to do so, would lead to a different charge, the officer told Prakash.
“Prakash explained that he had a reflux condition that he was taking medication for and it caused him to burp,” the petition said.
Several minutes later, he burped again.
The officer explained the situation again and restarted the 15-minute period.
Five minutes later, the constable explained more in-depth that if Prakash were to burp again, that he could be charged criminally for refusing to provide a breath sample, and or receive driving prohibitions of 90 days and a vehicle impound of 30 days.
“Prakash advised that he understood, and again explained his medical condition,” the petition said.
And, 10 minutes after that, Prakash provided a breath sample that resulted in a "fail’"reading.
Results 'not reliable'
Prakash requested a review of the finding, arguing at a hearing that his alcohol level was not over the limit, that the ASD results are not reliable due to contamination from the reflux condition and that he was denied a second test.
The claims said Prakash was told he would receive a decision by Nov. 29 but that was later extended to Dec. 6.
The prohibition remained in place.
On Dec. 3, the adjudicator’s decision upheld the prohibition.
In the petition, Prakash argues that decision was flawed and unfair.
