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.
For some time, I have been advancing an argument with the Superintendent of Motor Vehicles related to mouth temperature. In case called Naughton this issue was successfully argued involving a driver who had a fever. He provided evidence to show that the temperature of his mouth directly impacted the reliability of the breath sample. This is because breath testing operates on a principle known as Henry’s Law.
Henry’s Law states that at a given temperature, the saturated vapour above a solution contains a concentration of solute proportional to the concentration of solute in the solution. In breath testing, Henry’s Law is applied to assume that at 34 degrees Celsius, your deep lung air will have a proportional concentration of alcohol as there is alcohol in your blood.
Recent studies have suggested that this may not be so accurate, but it’s the science our legal system currently accepts.
The problem with mouth temperature is that it affects the temperature of breath as it is expelled from the lungs. The hotter your mouth, the hotter the breath will be. The cooler your mouth, the cooler your breath will be.
But it’s not just circumstances in which a driver has a fever that affects this. The Intox EC/IR II manual (the breathalyser at the police station) indicates that objects in the mouth may cause the mouth temperature to be unstable, or falsely high or low. There is supposed to be a waiting period once objects are removed from the mouth in order to stabilize the mouth temperature.
The Superintendent’s new version of the Alco-Sensor FST Manual for British Columbia Users states the opposite. It states that mouth temperature is not affected by objects in the mouth. This is notwithstanding that the manual for the rest of Canada follows the Intox EC/IR II manual and dictates that a five-minute waiting period is required to allow the mouth temperature to stabilize.
This makes no sense.
We’re all living on planet Earth. Last time I checked a map (admittedly, it’s been a while) British Columbia was not near the Bermuda Triangle or the North Pole. Physics here are the same as physics in Alberta, Saskatchewan, Manitoba and everywhere else. And yet the Superintendent has actually had evidence rewritten so that drivers cannot make a valid scientific argument to support their cases.
I suspect the Superintendent must also be a climate change denier…
It would behoove the Superintendent to provide some sort of an explanation as to how the scientific functioning of the same piece of equipment magically changes once you cross the border into British Columbia, but ever since the Legislature shifted the burden to the driver in the review, that now falls to them. The impossibility of the review process in cases without experienced legal representation is only growing, particularly where the boundaries are shifting like lines in a sandbox.
I expect this issue will just have to come for judicial review, and the Court will have to determine whether the manual that contradicts all other scientific evidence and manuals, and which is put on the Superintendent’s website is somehow more reliable than… actual science.
Only time will tell how that goes.
In the meantime, I’m going to drink a beer, suck on some ice cubes, and see how my breath sample results change. Because science!
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.