A few years ago, I wrote a blog post on the topic of the second test in an Immediate Roadside Prohibition case. At the time, I discussed how the right to a second test functioned as a double-edged sword. In one sense, it could exonerate you. In another sense, it could become inculpatory evidence.
A lot has changed since that blog post, and I wanted to revisit the question of whether taking a second test is really worthwhile for drivers. My conclusion based on the current state of the law is that taking a second test is a foolhardy idea. It’s a trap.
Taking a second test if your first is unreliable:
At the time of my original post, the law was not consistent nor clearly articulated about whether a driver was entitled to one reliable test or two. The BC Court of Appeal has chimed in on the issue in a pair of cases, called Ucrainet and McConachie. Despite the fact that the legislation requires a police officer to have grounds to believe the result is reliable after the first test, this requirement is purely illusory: a police officer can replace defective grounds by a driver’s election to take a second test.
The Court in Ucrainet said this:
 Neither the facts in this case nor those in McConachie demonstrate a need to interpret the Act as setting up a precondition in order to address concerns about unfairness or officer misconduct. In both circumstances, the officer acted on the time estimate provided by the driver. It was not alleged that the officer was lying or acting in bad faith. The driver’s position in McConachie was that the officer failed to wait sufficient time to account for a margin of error in the driver’s estimate; and in this case, it was simply that their recollections differ as to what the driver told the officer. In neither case was there any indication that the officer thought the first test would not produce a reliable analysis. There would be nothing to gain in any event from rushing the first test since a “Fail” or “Warn” triggers the opportunity for a second test and the lower result prevails.
The problem here is that circumstances of unreliability in the result may not always be clear to a driver roadside. As the courts have recognized, there is a power imbalance that functions against the driver. The driver is not privy to the training, knowledge, and experience of the police and therefore may not know why a “Fail” or a “Warn” reading appeared on an approved screening device.
So taking a second test has the potential to negatively impact your case. If you got a reading that was not reliable due to operator error, malfunction, or improper maintenance of the roadside breathalyser, then you run the risk of providing confirmation of that reading by taking a second test.
Now, when I’ve made this argument in court some judges have characterized the decision not to take a second test as “game playing.” This is not so. There is no game in electing your method of challenging the prohibition. The Legislature left that open. Had they intended otherwise, they would have simply made the second test mandatory. But that remains a concern. Frankly, I think it is cynical to assume guilt and assume that a person won’t take a second test solely because they believe they are over the limit.
I also note that the limitations on disclosure and the prohibition on cross-examination function in the same way to prevent drivers from knowing whether a second test is reliable in any event. While drivers do get “calibration records” those remain undefined in the Motor Vehicle Act. In theory, a napkin with “This ASD was calibrated kthxbai” written on it would satisfy that requirement. And there is no process to compel disclosure of any calibration information the officer does not see fit to provide. Similarly, if an officer does not address certain issues related to the operation and functioning of the ASD at roadside, there is no process to ask about that. And remember, the BC Court of Appeal just totally shut down the prospect of introducing fresh evidence in the future in a review hearing.
So even those who take a second test after a first unreliable test may also get an unreliable result. And because of the inherent limitations in the system, the driver will have no way to prove that. In that regard, letting a single unreliable result stand unchallenged at the roadside is less of a risk than taking a second and potentially confirming it, or potentially getting another unreliable reading for a different reason.
After all, what are the odds that an officer who does not properly account for the elimination of residual mouth alcohol or who uses an expired device will conduct a second test by following proper procedure?
Information about the second test becomes irrelevant:
This is a tough one to wrap your head around, so strap in.
Under Section 215.42 of the Motor Vehicle Act, an officer is required to advise drivers of the right to a second test. However, the police are not obligated to advise drivers why the second test would be conducted or that a different device is to be used. The failure to provide these two pieces of information does not result in revocation of the prohibition, but it is a consideration in assessing why a driver would not take a second test. That would address the cynical view I described above about game playing. The Motor Vehicle Act also states that if an adjudicator is satisfied a driver was not advised of the right to a second test, the prohibition must be revoked.
Except that’s not actually the case.
Yes, despite plain language from the Legislature stating that if X does not happen, an adjudicator MUST revoke a prohibition, that plain language is apparently not so plain after all. Last week, the BC Court of Appeal ruled on an appeal of a case called Bisaillon that the second test information does not have to be conveyed to a driver if the driver takes a second test.
In Mr. Bisaillon’s case, he alleged that the officer forced him to take a second test. The original judge stated:
In any event, it is unclear to me why this matters. If he refused the second test on an understanding it was optional, he would still have met the criterion to get the prohibition. Thus, no beneficial consequence flows to the petitioner even if his position is accepted.
The Court of Appeal not only upheld this finding but went one step further to make it such that it doesn’t matter even if the officer says nothing at all about the second test, because if you get one then you’ve had a chance to challenge the prohibition and that is all that matters.
Well, as we know from the discussion above and from the Court of Appeal’s ruling in the Molberg case, the situation is a lot more nuanced than that. But nuance apparently has no place in an administrative scheme.
What this means is that if you take a second test, you are giving up an argument that you were not properly advised of your right to a second test. An entire ground upon which the prohibition can be revoked will no longer be available to you. Moreover, if you do take the second test, you compromise your chances of challenging the prohibition based on an issue of reliability. This is not to say that it’s impossible, but it becomes more difficult because instead of having to defeat one fire-breathing dragon, you’re facing off against two.
The Second Test is Evidence Against You:
We should not be so naive as to persuade ourselves that an adjudicator will not consider a second test as evidence against a person. What I mean by this is that challenging the prohibition can become more difficult and technical where there are two results showing the same thing.
One of the defences permitted under the Motor Vehicle Act is called “evidence to the contrary.” This is essentially a person introducing evidence of what alcohol was consumed on the date in question and when, along with a scientific calculation to show that their blood alcohol concentration did not exceed the legal limit. And while there is no explicit statement in the Motor Vehicle Act to say that a person who has two test results cannot raise this defence, it becomes a lot harder when there are two tests.
Sure, I’ve won on it before. But I come at it with a lot of scientific and explanatory evidence to show why two is not always better than one. Not all lawyers, and certainly not all self-represented individuals have this.
Recent cases where that evidence was not put before the tribunal have shown that in those circumstances two tests that produce the same result may be considered to be evidence that the results were accurate, and eliminate a challenge on other grounds. After all, the adjudicator is obliged under the legislation to consider the results of both tests in weighing the evidence in the balance. So having a second test that produces the same result is akin to inviting the police to gather more incriminatory evidence.
It’s like giving a confession to murder, and then leading the police to where you hid the murder weapon.
The potential that a second device will produce a reliable reading showing that you are under the limit and allowing you to go free has to be weighed against these huge consequences in taking a second test. And from my perspective, there is very little to be gained and a lot to be lost by taking a second test.
Which is why it is my belief that a second test is a trap and that drivers should not take the second test.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.