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Report on breathalyzers not admissible in driving ban review: B.C. Supreme Court

August 13, 2013 - 7:22 PM

VANCOUVER - British Columbia's Supreme Court has thrown out a roadside suspension issued to a woman who the court said had her rights to a second breathalyzer test violated, but the province's watchdog for motorists says court challenges to the province's tough drinking-and-driving laws are to be expected.

Sam MacLeod, B.C.'s superintendent of motor vehicles, said in a statement Tuesday that his office is looking into the court's decision on the roadside suspension, but will need time to decide how to move forward.

"What I can say is that we have always expected challenges to our tough approach to drinking driving, and we remain committed to continuing to be both effective and fair, while being tough on those people who choose to drink and drive and put their lives and the lives of others at risk," MacLeod said.

"To date, an estimated 143 lives have been saved as a result of our legislation, which amounts to a 51 per cent reduction in alcohol-related deaths."

The B.C. Supreme Court case involved Angela Lichun Buhr, who was pulled over at about 2 a.m. in February 2013 after "a report was made of erratic driving."

Buhr told the officer she hadn't been drinking, but her friends had. But the officer smelled alcohol and asked Buhr to blow into a breathalyzer.

Buhr took two tests — which is her right to do. While the first showed a failed reading, the other did not register and she was not given a chance to try again, according to court documents.

Buhr challenged the driving prohibition, court documents say, and at her review hearing, her lawyer pointed to the breathalyzer's manual, which stated that a reading cannot be initiated if the approve screening device's temperature is below 10 C or above 40 C.

The temperature of the second device was 9 C at the time, according to the officer who issued Buhr the roadside ban.

Court documents show the adjudicator upheld Buhr's driving ban, pointing to a government report that says while an approved screening device can be inaccurate when outside the ideal temperature range, a test can still be completed.

"I note there is no indication in the evidence before me that the actual functionality of an ASD is affected by its temperature; rather, only its accuracy may be affected," said the adjudicator's decision.

"So, even though the second ASD was operating at a temperature outside of the optimal range, and you had successfully produced a second breath sample, its accuracy may have been reduced, but any reduction in its accuracy would have been in your favour."

Among other things, Judge Richard Goepel of B.C. Supreme Court concluded the adjudicator was not eligible to rely on the government report, because an adjudicator's considerations can only be limited to the statements or evidence submitted by the driver, and any documents or information forwarded by the officer who handed out the driving ban.

"On this ground alone, the prohibition must be quashed," he said in his ruling.

Furthermore, even if the report was admissible, Goepel said he would have overturned the driving prohibition anyway because the adjudicator failed to consider the breathalyzer's instruction manual.

"That finding is clearly in error," said Goepel. "The adjudicator had before her evidence that an approved screening device would not operate below 10 degrees Celsius."

The B.C. government introduced amended laws in June 2012 and police were then required to tell drivers they have the right to another breath test on a second screening device, with the lower of the two readings prevailing.

People who fail the two breathalyzer tests at the roadside have their cars towed and their licence revoked for three to 30 days if the readings show they have a blood-alcohol reading in the "warn" range — between .05 and .08.

A "warn" reading can also include fines and vehicle impoundment, as well as the potential requirement for a driver education program and an ignition-lock system the vehicle. The costs can add up to thousands of dollars for a driver.

Anyone with a blood-alcohol reading over .08 is classified as a "fail" and faces harsher penalties.

In May 2012, the government amended its impaired driving law to strengthen the ability of people accused of impaired driving to challenge roadside screening tests and appeal immediate roadside prohibitions.

The amended law required police to inform drivers of their right to challenge their first roadside screening test by requesting a second test on a different machine. Accused drivers were also granted more power to appeal and seek reviews through the Office of the Superintendent of Motor Vehicles.

News from © The Canadian Press , 2013
The Canadian Press

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