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Faulty Breathalyzers in Port Moody

Over the last year, since the IRP scheme has been introduced, I have been doing a number of Freedom of Information requests to various police departments around the province regarding the maintenance and calibration of their approved screening devices. These are the machines that are being used at the roadside to issue IRPs. One of the police departments I contacted was Port Moody.

When I received their disclosure material, something didn’t seem right to me. So I did a follow-up request asking for clarification of their approved screening device calibration procedures. I asked for copies of their simulator solution change logs and any other records they may have in this regard.

When Approved Screening Devices are calibrated in Port Moody, the officer who does the calibration uses a Guth Simulator with an alcohol standard solution. He hooks up the ASD to this device, then blows through it. The effect simulates the breath of someone who has 100mg of alcohol in 100mL of blood.

Each time Approved Screening Devices are calibrated, a minimum two tests are conducted. One to check the device for calibration, and another to verify that it is correct. If the device is within the acceptable range for both tests, then calibration is complete. However, if the device is out of range, then several more tests may be conducted as the officer adjusts settings in order to move it to be within the acceptable range.

The Canadian Society of Forensic Sciences Alcohol Test Committee has established standards pertaining to the calibration of Approved Screening Devices. These standards are what is required of police and RCMP in Canada. For police who calibrate Approved Screening Devices using a simulator solution, as they do in Port Moody, the Alcohol Test Committee requires that a maximum of 16 tests be conducted per bottle of solution. After 16 tests, the solution must be discarded and a new bottle used.

The response I originally received from Port Moody indicates that each time ASDs are calibrated, a new bottle of solution is used. There are no records to this effect. However, this did not completely answer my question. I responded, requesting follow up. Specifically, I wanted to know how many ASDs are calibrated each time, and whether a new bottle of solution was used for each ASD.

The letter I received as clarification was surprising. The officer indicates that there are 9 ASDs in use in the department. Each time he calibrates them, he does all 9 at the same time. This means that a minimum of 18 tests are conducted per bottle of solution. He explains in his letter that he is allowed to conduct up to 50 tests with each bottle of solution.

It is clear that the officer is mistaken. He believes he is following the correct procedure, when in fact he is not.

The implications of this are severe. With a minimum of 18 tests being conducted each time ASDs are calibrated, at least one device is being calibrated using a bottle of solution that should have been changed. As there are no records pertaining to the solution change logs, there is no way of knowing which ASDs are calibrated again. Additionally, in my experience, typically 20-30 tests would be conducted in an attempt to calibrate 9 ASDs. This means that many of them are being calibrated using an expired solution.

In my view, all Immediate Roadside Prohibitions that have been issued in Port Moody should be lifted, and the money paid from them refunded. These devices are already remarkably unreliable. With the added factor of improper calibrations procedures, it is necessary to revisit every prohibition that has been imposed by Port Moody Police until the calibration procedures change.

If you received an IRP in Port Moody, please contact our office. You can reach us 24/7 by telephone at 604-685-8889.

It’s been over a year…

September 20th, 2011 marked one year of Immediate Driving Prohibitions in British Columbia. Although the law has been constitutionally challenged, no decision has yet been made. You can read more about the Constitutional challenge in my earlier blog post, located here.

Since the challenge, things have not changed. Individuals in British Columbia are still being stopped and issued harsh penalties without being afforded the right to contact counsel. Impaired driving charges are being forwarded to the Crown only in exceptional circumstances, meaning that the jurisdiction of the court in criminal charges is still being ousted.

Some defences that previously resulted in an IRP being overturned have now been eliminated. For example, our office used to experience success in arguing that the ASD result could not be considered if the service expiry date was recorded as MM/YY instead of MM/DD/YY as the Report to Superintendent requests. However, the Superintendent’s Report on ASDs was later amended to rule that the day of the month on which the ASD expires is no longer necessary.

We are eagerly awaiting the outcome of the Constitutional challenge. The legislation does not, in my view, meet its intended purpose of getting problem drinking drivers off the road. Rather, it penalizes people who do not deserve such harsh sanctions. Many of our clients have perfect driving records, no history of alcohol problems, and have never made this mistake before. Many of our clients are factually innocent. My hope is that this legislation will be struck down, licenses will be reinstated, and the government will work find a solution to the problem of drinking and driving that does not oppress individuals who are not causing harm.

The Approved Screening Device

What is it?

Until the Immediate Roadside Prohibition laws were introduced in British Columbia last year, the Approved Screening Device, which many people simply refer to as the roadside breath tester, was intended to provide a quick and easy way for the police to assess a driver’s sobriety without detaining them for a lengthy investigation.

The only ASD commonly used at this time in BC is the Alco-Sensor IV, a device produced by Intoximeters of Saint Louis. The versions sold to Canadian police departments have simplified software to make it easier for Canadian police officers to understand the results. The “Alco-Sensor IV DWF Screener” used in British Columbia indicates “Warn” between 60mg and 99mg in 100ml (up from 50mg as of November 2010) and “Fail” if over 100mg in 100ml. Below 59mg it displays the actual BAC.

How it works

Alcohol from the sample of breath is oxidized becoming acetic acid, then generating an electrical current which is measured and interpreted by the internal software. The results are displayed on a LED readout.

Is it accurate?

The RCMP maintains that there is an error factor of +/- 10mg% inherent in the device. However, our office has reviewed records from Freedom of Information requests that indicate that the ASD can be out by as much as 100mg%. In one detachment, an ASD gave a fail reading when a police officer blew into it. The officer had no alcohol in his body.

We have seen other records where the device was out by as much as 29mg% at the time it was calibrated. In addition to calibration, the units need annual servicing, and regular maintenance. Our records indicate there are several ASDs that have been sent back for service for a defective mouthpiece (which may lead to a refusal charge), temperature problems, fuel cell replacement, eprom socket defects, and more. In short, the device is not fallible. Like any other piece of machinery, it is prone to error.

Until recently, ASDs were calibrated every 14 days. This has now been changed to every 30 days. However, a recent study by Michael Rosland and Ronald Pon suggests that 30 days may be too long a period for ASDs to maintain calibration. The authors of the study tracked 36 devices from the Burnaby RCMP and the Vancouver Police Department for a period of eight weeks after calibration. After 14 days, 6% of the devices were no longer properly calibrated. After 21 days, 10% had lost calibration. And after 28 days, 12% were outside the acceptable range. The numbers increase from there.

What does this mean?

Potentially, 12% of individuals who have been issued IRPs from the Burnaby and Vancouver Police Departments are innocent. Given the other problems that we have observed through our Freedom of Information disclosure, this number may be even higher. There is no way of knowing for sure. This is why it is important to have a lawyer review your IRP evidence and determine if there may be a technical argument that can be made about the device.

If you received an Immediate Roadside Prohibition, call our offices immediately. You have only 7 days to file an application for review. We are available 24/7 to take your call. 604-685-8889

What To Do If You Get an Immediate Roadside Prohibition

Since September, 2010 the BC Government has been issuing drivers in the province Immediate Roadside Prohibitions if they fail an Approved Screening Device test or if they refuse to comply with an Approved Screening Device demand. The Approved Screening Device is the roadside breath tester used in these cases.

If you have received a 90-day IRP it is important that you consult a lawyer as soon as possible. You only have 7 days to file an application for review of the prohibition. While extensions of the 7 days are available, they are only granted in extreme circumstances. Most people do not meet this standard. Many lawyers, including our office, offer a free consultation to discuss how to proceed with your IRP review.

In our offices, the lawyers will review the evidence provided to ICBC by the police in your case. It is crucial that you have a lawyer review your evidence. They are knowledgeable about defences to IRPs that you may not be aware of. In addition, lawyers conduct many of these hearings a week. They are aware of the arguments that may succeed and the arguments that will lose. For example, the adjudicator cannot consider hardship in the review.

Once a lawyer has reviewed the evidence in your case, he or she will be able to give you an opinion about whether you have a chance of success on review. Our policy is not to advise people to hire us to conduct a review if we know they will lose. However, if we think there is an issue worthy of consideration, we will advise you to file for an oral hearing. You must file within 7 days of the date on the IRP. The lawyers in our office then conduct the hearing with an adjudicator from ICBC. A decision is usually made within 21 days.

If you lose, it is not over. There is still the opportunity to appeal to the Supreme Court of British Columbia. Our office has worked on many of these appeals. Currently, we are awaiting a decision about the Constitutionality of the IRP regime. If you have conducted the hearing yourself, you can still hire us to appeal your decision for you. But in order to appeal, you must have had a hearing and you must have lost.

We are able to seek a stay of the driving prohibition and the other consequences pending the outcome of the appeal. This means that you may be able to get your license back in the meantime, until a decision is made. We do not know when that will be.

If you are interested in hiring us to conduct a review of your IRP please contact our offices at 604-685-8889. The phones are answered 24/7.

Immediate Roadside Prohibition Challenge

This blog post is now located here.

Court of Appeal Upholds 8.5 Year Sentence

This blog post is now located here.

Marijuana Use and Driving

A British Columbia study was recently conducted to determine the percentage of drivers who use marijuana before operating a motor vehicle. Drivers in Vancouver, Saanich, Abbotsford, Prince George and Kelowna were tested orally between the hours of 9pm and 3am. Of the nearly 3000 drivers who participated in the study, more than 200 tested positive for the presence of drugs in their system.

I don’t think people usually associate impaired driving with drug use. What more readily comes to mind is the use of alcohol and its effects on the ability to drive. But the Criminal Code provides that impairment can be either by alcohol or by a drug. With the potential for over 7% of drivers in British Columbia to be impaired by drug use, this raises some serious concerns.

Allan Lamb, the Traffic Safety Foundation executive director for the British Columbia Automobile Association, seems to suggest that the problem is limited to young people. He states that young people frequently tell him that they would not drive after drinking, but think nothing of lighting up a joint and driving.

Another recent study suggested that 33% of drivers who were killed in motor vehicle accidents tested positive for drugs. This number is surprisingly high, given the fact that 37% of those killed test positive for alcohol.

One wonders if more rigorous screening for the presence of drugs in drivers is on the way, given this new information. I’m interested to see what kind of follow-up will be done by the Legislature as a result of this new information, if any. The Province has recently attempted to stiffen the laws relating to drinking and driving, so it is possible that legislation may be on the way to impose immediate penalties against those who use drugs before driving. It’s impossible to say. Only time will tell.

Impaired Driving in BC- When Police Decide to Charge

I’m sure that many British Columbians have now heard about the traffic accident that took place in Kelowna, BC, resulting in injury to four individuals.

The driver of the vehicle has been arrested and charged with impaired driving causing bodily harm, dangerous operation of a motor vehicle causing harm, driving while over .08, driving while suspended and breach of undertaking. It is said that he was already prohibited from driving and from consuming alcohol by a court order at the time the accident took place. He is now facing some very serious allegations.

This is one of the increasingly rare circumstances here in BC where an individual has actually been charged criminally following an impaired driving investigation. As you may know, BC currently has a law that imposes extremely harsh penalties against drivers who police allege are impaired. These penalties are delivered by way of the Motor Vehicle Act, rather than the Criminal Code.

But in circumstances where there is an accident or a death, police still proceed by way of criminal charges. To me, this seems problematic. Police shouldn’t have the power to pick and choose when they enforce the nation’s laws. It strikes me as similar to giving police officers charge approval powers, something that is left to Crown counsel. Under the new regime, police become judge, jury, and executioner, while individuals who are being investigated are left wondering whether they will be charged criminally or whether they will receive extraordinary penalties under the MVA.

I also have to wonder if this law is really addressing the issue of the problem drivers that police say it will take off the road. If criminal sanctions and convictions generally only stem from incidents where people have already become injured, isn’t the new law doing little to take the individuals who do cause harm by breaking the law off the road?

It’s hard to say. This is a difficult issue and one that is, especially in circumstances of the aforementioned case, fraught with emotion. What’s your opinion?

John Galliano Supsended from Dior

This blog post is now located here.