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Police documents question accuracy of B.C. breathalyzers: lawyer

12/26/2011 10:51 EST | Updated 02/25/2012 05:12 EST
VANCOUVER - News that a sober Abbotsford, B.C., police officer tried out the department's breathalyzer and failed the test is enough to send chills down the spine of any designated driver in this holiday season.

A Vancouver lawyer says the machines police rely on to take drunk drivers off the road and deliver hefty financial penalties are notoriously faulty and things haven't improved in the year since more than 2,000 were taken out of service for recalibration.

Although access to information documents show a litany of problems with the devices in Vancouver, Abbotsford, Whistler, Kitimat, Kamloops and Port Moody, none of the problems have been reported to the Superintendent of Motor Vehicles, the body that polices roadside penalties.

"This sort of undermines the confidence in the justice system from two different respects because if you're using a wonky system to collect evidence and you can come to me and I can show you the problems with it, who's going to trust the system?" asked lawyer Paul Doroshenko.

He started filing access to information requests for the repair documents on the machines after B.C.'s tough new anti-drinking and driving laws were enacted last year. He has represented hundreds of those caught up in the laws, considered the toughest in the country.

Earlier this month, a B.C. Supreme Court judge struck down part of the law, saying people were being subjected to fines and suspensions based on a roadside screening test without any recourse to a meaningful appeal process or a lawyer.

But the judge upheld the penalties for people who blow between .05 and .08, saying they weren't as severe as those for people who blew over .08 and therefore could be justified.

While the judge declared the law unconstitutional, last week, he gave the government another six months before it was suspended to change the legislation to conform with the Charter.

Doroshenko said his documents indicate about 100 of the devices have accuracy problems and B.C. drivers shouldn't have to endure what's essentially trial by machine.

The repair and service papers show a long list of failings connected to the finicky roadside screening devices.

Among the problems: they can be unreliable in the cold. An RCMP document indicates the units can only be used if they're kept between the temperatures of 10 and 40 degrees Celsius.

The repair sheets list a variety of other problems: "unit failed when member tried it," "displays void when trying to collect sample," and "breath flow sensor is inoperative."

Police are expected to calibrate the machines about every 30 days in two ways, either the wet-bath or dry-gas method.

The wet method uses an alcohol/water standard, while the dry method uses a pressurized canister with an alcohol and inert nitrogen mixture. Both are meant to ensure the devices are set accurately to reflect that someone blew over .08, or 80 milligrams of alcohol per 100 millilitres of blood.

But many calibration documents Doroshenko received indicate that calibration is way off.

"When tested, the machine showed a reading of 32 (milligrams of alcohol)," said Doroshenko, referring to an RCMP Kamloops note to Davtech, the Ottawa firm that fixes the machine.

"The second test after calibration showed a reading of 172."

"The highest I think we saw, there was one unit from Abbotsford that just issued a fail when the officer tested it for basic functionality at the beginning and then they said 'retired unit'," Doroshenko said.

"He hadn't been drinking at all. It just gave a fail."

In one repair document, three of Whistler's devices were in for repair at the same time. The detachment has a total 15 of the screening devices.

After the B.C. Supreme Court ruling this month, Attorney General Shirley Bond said police officers would go back to requiring those that fail a roadside test to come back to the police station for a more accurate test using a breathalyzer machine. If a fail is registered, the driver is to be given the chance to speak to a lawyer and is charged criminally.

Bond has indicated, though, that the province would like to rewrite the law to ensure it conforms to the court ruling without returning to the system where drunk driving cases are clogging the courts.

For drivers who are caught driving with a blood-alcohol limit of between .05 and .08, police can continue to suspend driving privileges and impound the vehicle for three, seven or 30 days.

"This is a bad law." Doroshenko said.

He acknowledged the rights of drunk drivers get very little sympathy with the public, but he noted that if a reading is off so badly that innocent drivers are being punished, it's possible the machines are also making errors in the other direction — registering passes in tests where drivers should have failed.

"They're not perfect units," he said, waving one of the police repair reports in the air.

"There was one calibration sheet that recorded readings for eight units and six of eight were 10 milligrams above what they should have been."

Meanwhile, the Superintendent of Motor Vehicles is supposed to be alerted if there are questions around a roadside prohibition.

Bond, who's also the solicitor general and oversees the superintendent, said the department has received no information from any police department to indicate that the approved screening devices are out of scope.

"It is our expectation that police understand the importance of ensuring that these devices are working properly as a crucial component of combating drinking and driving," said Bond, in an email.

"These devices are highly accurate and have been in use by police in B.C. since 1977."

Bond has pointed out several times that since the law came into effect last September, there has been a 40 per cent reduction in impaired driving deaths, or about 45 lives saved.

This isn't the first time the accuracy of the devices have been questioned. In November 2010, police took 2,200 of the devices out of service for recalibration.

Police said the handheld units would be set to the warn range at .06 instead of .05 with the hope of removing any doubt about the accuracy of the device.

Victoria Police Chief Jamie Graham said at the time that he had evidence from the RCMP crime lab that showed the calibration could be off by as much as one per cent.

But access to these new documents prove nothing has improved, Doroshenko said.

"My concern is that testing them once a month, they were relying on them to justify really harsh punishment, on-going punishment. People lost their houses because they lost their ability to drive."

He said none of this should be a surprise to the provincial government, but it seems to be in denial.

"The government never passed any legislation that said that these devices have to be maintained properly or have to be tested properly, they have no legislation about the function of the device."

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