A few weeks ago, I wrote about how the Alco-Sensor FST manual was changed to support a certain unscientific and inaccurate belief about mouth temperature. My concern with any of this is, of course, the fairness of the Immediate Roadside Prohibition review process and whether drivers are given a reasonable opportunity to challenge the apparent results of their breath tests.
Sadly, today I learned of yet another change the Superintendent of Motor Vehicles has made to make the review process less effective and fair to drivers. I have to say, sometimes participating in this review process is like attempting to play a chess match with Death, except Death can change the rules of the game at any point.
A few months ago, I wrote about the awful amendment to the Motor Vehicle Act that allow the Superintendent to prepare their own material, under the guise of “technical materials” to determine cases. This material, pursuant to the legislation, is only to be used for the purpose of determining issues raised by the applicant.
The problem with the Superintendent being able to do this was that the Superintendent is then presumed to be an expert on issues which he is, frankly, not. At the time, I predicted that the Superintendent would simply rewrite science in order to advance the goal of upholding IRPs. And, unfortunately, I was right.
Today, I received word on an IRP hearing that the Superintendent would be relying on Technical Materials, including a new version of the ASD manual that was posted on their site today. I dropped everything to read this new version of the manual, and I saw something I expected to see.
On Thursday, the Liberal Government revealed its plan for marijuana legalization. Surprising to many was the fact that the Liberals introduced this as part of an omnibus bill that makes amendments to other parts of the Criminal Code, including the impaired driving legislation. Omnibus bills were commonly criticized by them as tactics used by their predecessor to pass bad legislation. These proposed changes also hide some of the more disturbing aspects the Government has introduced in furtherance of its stated goal to legalize marijuana.
I am deeply disturbed by changes that the Government has proposed, in particular the proposal to conduct random breath tests of drivers.
Over the next few blog posts, I am going to share some of my views on this proposed legislation and why I believe it to be constitutionally deficient.
In our law office, we deal with more roadside drinking and driving cases than any other law firm in the province. As a result, I probably speak with more people about drinking and driving in a month than many lawyers will in a year. I've come to realize that there are some very common and pervasive misconceptions about drinking and driving that exist in our province. This post will help to dispel a lot of those myths.
When you are pulled over and subject to an Immediate Roadside Prohibition investigation, you have the right to a second breathalyzer test at the roadside. This test is required to be conducted on a different device, and the lower of the two readings will prevail. The second test is sold to drivers by police as the mechanism by which they are entitled to challenge the results of the first test, and that they have nothing to lose by taking this. Well, that's only sometimes true. The second breathalyzer test is often a double-edged sword.
In my last post, I discussed the changes to the BC Motor Vehicle Act that were underway. As expected, the legislation passed. Many of the changes the Government touted as positive have already come into effect, including the left-lane hog aspects of the changes. The Government made a big deal out of announcing this when it happened. But there were also changes slowly implemented that Government hasn't advertised to the public. These are the changes to the drinking and driving legislation.
An article was published on the CBC website this week, suggesting that impaired driving incidents are not properly declining due to "loopholes." Frankly, as a lawyer who deals primarily with impaired driving cases, I found this article to be offensive and ill-informed. I want to use this blog post to address some of the most concerning aspects of this article, and the opinions quoted in it.
What is a loophole?
A loophole is different from a defence. Wikipedia defines a loophole as "an ambiguity or inadequacy in a system, such as a law or security, which can be used to circumvent or otherwise avoid the intent, implied or explicitly stated, of the system." The point of a loophole is to contravene the intent of a law, without technically breaking the law. Think of it as following the letter of the law, but not its spirit.
A lot of people that initially call my office aren't sure how to go about defending their Immediate Roadside Prohibition. They don't know what it takes to defend an IRP. As with any legal work, most clients whose cases I successfully have defended are unaware of all that has gone into their defence.
Simply put, defending an Immediate Roadside Prohibition isn't just about presenting my client's version of events and hoping the adjudicator makes the right decision. There is so much more that goes into defending an IRP.
Knowing the Law
A huge aspect of defending clients who are facing long driving prohibitions comes down to knowing the law. This is why people hire lawyers in the first place -- because they want someone who has extensive experience in a particular area and is best equipped to handle their case. When I defend clients facing Immediate Roadside Prohibitions, in every single case, I don't just present their version of events. My submissions contain a comprehensive breakdown of all the applicable case law, and how it relates to their cases.
Part of knowing the law is knowing the cases that work for and against my clients. Just because a person lost their IRP appeal in BC Supreme Court, doesn't mean that the decision should be disregarded. I have attributed a great deal of my success to the fact that I am able to glean the legal principles from the cases, and apply them even when the outcome has not been favourable.
One of the reasons I know the law is because I have been fighting these cases not just before the tribunal, but also in BC Supreme Court. Some of my successful decisions have resulted a complete change in practice and procedure at RoadSafetyBC.
Knowing the Machinery
One benefit that I have, that my clients often do not, is that I know the machinery. Not only have I operated and used an Alco-Sensor IV DWF on numerous occasions, but I have also read the manufacturer's manual, the RCMP manual, and the calibration manuals. I have calibrated and checked the calibration of these devices using both types of alcohol standard. I have an Alco-Sensor IV and an Alco-Sensor FST in my office. I've even been certified in the calibration and operation of the Alco-Sensor FST by the manufacturer.
Because I have access to the equipment and the information about the equipment, I am able to discern easily from police records whether the breathalyzers were properly operated or functioning properly at the time of the test. There are so many nuances in the operation and maintenance of these devices that can be overlooked by people without a trained eye. Knowing the breathalyzer is a significant contributing factor to my successes in IRP DUI cases.
Never Giving Up
In truth, this is probably as much a personality flaw as it is a benefit to my clients. When something matters to me, I will fight to the bitter end. When it comes to defending Immediate Roadside Prohibitions, I never give up. Anytime there is a change in the law that benefits my clients, I will spend evenings and weekends in the office, pulling files, contacting clients, and making supplemental submissions to the RoadSafetyBC tribunal or the Attorney General. It is not uncommon for me to fax submissions to the Superintendent of Motor Vehicles over the weekend, until their fax machine runs out of memory and paper.
If you receive an Immediate Roadside Prohibition, you need a lawyer who knows the law, knows the machinery, and never gives up. I cannot promise that I will win your case, but I can promise that I am all those things.
As reported on the Acumen Law Blog recently, the breathalyzer doesn't always work correctly. And key to defending any Immediate Roadside Prohibition case is understanding how these devices work.
But sometimes, errors occur that cannot be explained. As you can see in the above video, the Alco-Sensor IV DWF device simply would not accept my breath sample. I have blown into this and other breathalyzer and approved screening devices probably thousands of times. I have experimented with blowing hard, blowing soft, blowing for a short time, and blowing for a long time. I know how to provide a suitable sample. And in the video above, I was doing exactly what the device required to meet the sampling parameters. Yet for some reason, the device simply did not detect my airflow.
This was an approved screening device that had been checked for calibration using a wet bath standard and had received recent annual servicing. On paper, there was no reason why the device should not have accepted my breath sample. Nonetheless, despite my best and most legitimate attempts to blow, the machine did not work.
I deal with many Immediate Roadside Prohibition, Administrative Driving Prohibition, and criminal refusal to blow charges every year. Every once in a while I have a client who tells me they were making an earnest and honest attempt to provide a sample, but the police disclosure reveals information that would indicate no air was going into the device. Having experienced this issue myself, I can relate to my clients' bafflement at their circumstances and I understand my clients' innocence.
One of the most important factors in defending impaired driving, DUI, and/or Immediate Roadside Prohibition (IRP) cases is understanding the equipment used by the police. Until you have had hands-on experience with the devices and instruments, you cannot fully understand the intricacies of how these machines work. I am fortunate to have a small collection of breath testing equipment, including a BAC Datamaster C approved instrument, an Alco Meter SL-2 approved screening device, a Draeger AlcoTest 7410 approved screening device, and a Breathalyzer 900, which was formerly an approved instrument. In our office, we have an Alco-Sensor FST, Alco-Sensor IV, Intoxylizer 400, and an Intoxlyzer 5000. I have personally operated and used each of these pieces of equipment, so I know and understand how they work and why they fail.
But sometimes, (like in the above video) even with plenty of experience using a device, it simply does not work. And the reason why cannot be explained.
Vancouver Criminal Lawyer focusing primarily on DUI, impaired driving, and Immediate Roadside Prohibition cases.