Edmonton Canada: Noise law fails first test in court Police didn't comply with established standards

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Canada: http://www.edmontonjournal.com/technology/Noise+fails+first+test+court/4310025/story.html
Noise law fails first test in court

Police didn't comply with established standards

By Alexandra Zabjek, Edmonton Journal, with files from Gordon Kent February 18, 2011 StoryPhotos ( 1 )

EPS traffic section Sgts. Eric Theuser, left, and Eric Duff demonstrate the use of a sound-level meter used to gauge motorcycle noise. Photograph by: Bruce Edwards, The Journal, File, Edmonton Journal, with files from Gordon KentAn Edmonton man who faced a $250 fine for having a noisy motorcycle had the ticket quashed in court Thursday because testing on his Yamaha 650 wasn't done properly.

"I have difficulties with the ways the testing was done," Commissioner William Andrew said in his decision that dismissed Stuart Young's ticket.

The controversial bylaw restricts motorcycles to a maximum of 92 decibels when idling and 96 decibels when operated above idle.

Young, 25, was stopped at 70th Avenue and 104th Street around 6 p.m. on July 8, 2010, and officers found his motorcycle tested at 100.3 decibels when revving at 2000 rpm.

But Andrew noted that evidence presented about the testing done on Young's motorcycle deviated from accepted standards set out by the Society of Automotive Engineers (SAE). For example, he found no evidence on whether testing for ambient noise was done immediately before Young was pulled over, or whether it had been done several hours earlier.

He also noted there was no evidence to show the exhaust outlet on Young's motorcycle was 10 inches from the curb or that all buildings were eight feet away from the motorcycle -- rules set out by SAE.

"There has to be some balance between making it nearly impossible to take measurements ... but it has to be done accurately," Andrew said.

Young said he was elated.

"For motorcyclists it means they have something to help them when they go to court," the University of Alberta student said outside court. He thinks the problems that arose with his ticket have likely been repeated with the majority of tickets handed to Edmonton motorcyclists.

Young criticized the city bylaw, saying it was rushed without properly training police officers and without looking at other noisy vehicles.

"In doing that, they not only wasted a lot of taxpayer dollars -- if you think of the thousands upon thousands spent doing the tests, now all the people fighting them and the court costs. I mean, I think the City of Edmonton should be ashamed of themselves, of how they pushed this through so quick and hopefully they'll take another look."

When asked if he thinks his motorcycle is too loud, Young smiled and said he has since sold his Yamaha 650. "I don't agree with guys with crazy-loud motorcycles with cracking and popping," he said. "But where I was at, and where the majority of people are at is just over the cusp or just on the cusp, and that's definitely not too loud. Obviously, I'm biased, but I think we're OK."

Lawyer Scott McAnsh, who argued the case for the city, said the traffic commissioner's decision isn't binding on other commissioners or courts, so he doesn't expect it will have much impact on the noise bylaw.

The offence simply requires sound levels to be over certain limits when measured 50 centimetres from the exhaust, he said.

"The finding of the commissioner was that, basically, we had to prove all the elements found in the Society of Automotive Engineers guidelines as to how a person should measure a decibel reading from a motorcycle," McAnsh said.

"(This) does not form a part of the bylaw, which is why in our opinion he made an error in law."

Officials haven't decided whether to appeal. Although the city lost its first noisy motorcycle prosecution last year, it has won cases since then, McAnsh said.

Coun. Dave Loken said he still supports controls on motorcycle noise and wants to look at expanding the bylaw to cover racket from other vehicles as well.

"I think it's just a public nuisance to have anything loud, whether it's motorcycles or cars, nearby," Loken said.

"It's annoying to be woken up in the middle of the night by anything ... when I walk down the street and I hear a loud motorcycle, I get upset."

Police have indicated they hope to have a recommendation for city council in March about whether the bylaw should cover all motor vehicles.

By last November, they had issued 115 tickets.

Although police, the motorcycle industry, motor transport administrators and Alberta Transportation have developed specific noise standards and roadside testing methods, the province hasn't passed those standards into law.