Following last week’s post on the twelve weeks of DRE-mas, I am writing about the first of the twelve steps in this twelve-step program. The first step is a breath alcohol test. Now, I know that some people might think that seems normal: alcohol is a drug, after all. However, a breath alcohol test is actually a built-in safeguard because it’s common for police to get it wrong.
This is is the idiot-proofing step.
When a peace officer makes a demand for a Drug Recognition Evaluation, the officer is supposed to have reasonable grounds to believe the driver’s ability to drive is impaired by a drug other than alcohol. Alcohol is relatively easy to detect. You can smell it. People admit consuming it. The symptoms of alcohol consumption are well known in society.
So why have a breath test as part of the DRE Evaluation?
The reason for this is that officers are frequently wrong in their judgment. Officers are frequently mistaken about what they are smelling or what the reason is for what they are seeing. And so because officers cannot clearly identify someone who is impaired by drugs, the first step is to make sure they aren’t impaired by alcohol.
This is more complex than you may think. I’ve had cases where the officer — experienced officers even — make a DRE demand only to discover that the person had three times the legal limit of alcohol in their blood. Pretty hard to miss that, you'd think. But apparently not. So idiot proofing is required.
In Canada, the breath test proceeds by way of a demand made under Section 254(3.3) of the Criminal Code. This allows the officer to require a person to provide samples of breath, and also requires the officer to follow all the same procedures that would take place in a regular alcohol impaired driving investigation.
In some respects, this is good for the guilty. The breath testing process requires an observation period before samples. This allows time to pass for the effects of a drug to wear off, potentially allowing better performance on the DRE test. It also adds another layer of challenge: if the breath tests are not conducted properly, and the test itself relies on all twelve steps to be accurate, then a faulty breath test is faulty administration of the test.
If the breath test reveals alcohol that does not end the matter. The officer must still ask themselves whether the alcohol explains the impairment. If not, then the training is to continue with the test anyway. Yes, the training is to continue with a series of eleven more steps to assess the physical and psychological coordination of a person who is drunk only to determine whether they are also on drugs.
The problem with this is that the DRE testing protocol was never tested on or evaluated for its accuracy with people who have consumed alcohol. Many of the results obtained, such as measurement of pupil size, performance on SFSTs, and blood pressure are likely to be affected by the consumption of alcohol. The presence of alcohol in the body will skew the results. It makes it very difficult for the evaluator to give an informed opinion where the opinion is based on a faulty foundation.
Maybe not so idiot proof after all.
A breath test result of zero leaves a clever defence lawyer with a great deal of room for challenging the administration of the test, the officer’s procedure, and the results overall of the DRE. And a breath test with alcohol means that holes can be poked in the outcome of the rest of the physical coordination and evaluation tests that are performed at the police station.
In reality, the breath test step can be very beneficial to the defence, even though it really feels like a backdoor for police to cover their behinds if they cannot detect the obvious symptoms of alcohol impairment.
Check back next week for the second step of the Drug Recognition Evaluation Program. You can read part one of the series here.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.