Breath Test Devices Manipulated To Show Higher BAC Levels.

Breath Test Devices Manipulated To Show Higher BAC Levels.

This past summer the BC government lowered the breath alcohol limit and increased penalties to be imposed on the roadside by police officer’s.  Not surprisingly it is now discovered that in the absence of checks and balances to their unfettered roadside police power, the device employed by the officers provide false readings- falsely high readings. Lawyers Claim Faulty Use Of Breathalyzer BY KIM WESTAD, POSTMEDIA NEWS MARCH 4, 2011 A class-action lawsuit challenging impaired driving penalties given out under new drunk...


This past summer the BC government lowered the breath alcohol limit and increased penalties to be imposed on the roadside by police officer’s.  Not surprisingly it is now discovered that in the absence of checks and balances to their unfettered roadside police power, the device employed by the officers provide false readings- falsely high readings.

Lawyers Claim Faulty Use Of Breathalyzer

BY KIM WESTAD, POSTMEDIA NEWS MARCH 4, 2011

A class-action lawsuit challenging impaired driving penalties given out under new drunk driving legislation was filed Thursday in Vancouver.

The lawsuit says that, between Sept. 20 and Nov. 19, police officers throughout the province were negligent in their use of the roadside breathalyzer device, which determines a driver’s blood-alcohol level.

Legislation came into effect Sept. 20 that penalizes drivers whose bloodalcohol concentration is between .05 and .08. The level is determined by a roadside breathalyzer, which indicates “warn” if a person’s blood-alcohol level is between those numbers.

The lawsuit alleges that until Nov. 19 police used improperly programmed breathalyzers to determine the reading, which resulted in drivers being penalized when their blood-alcohol levels were below .05, said Michael Thomas, one of the lawyers who filed the lawsuit.

On Nov. 19, Victoria police Chief Jamie Graham, as chairman of the B.C. Association of Chiefs of Police traffic safety committee, recalled 2,200 roadside breathalyzers after RCMP lab tests found a margin of error in the devices. The RCMP found the units could indicate a reading over .05 when the driver was actually under it.

The units were re-set so that a “warn” reading is obtained if the driver blows .06, recognizing the potential machine error.

“The way the legislation is drafted, the public has to rely upon proper enforcement. Our allegation is that that wasn’t done in this time period,” Thomas said.

Police either improperly programmed the devices or failed to detect that they weren’t programmed accurately, the lawsuit alleges. An estimated 170 people a week faced licence suspensions during the period, with penalties ranging from $600 to $4,060.

For a driver with one “warn” reading in the past five years, the minimum penalty is an immediate loss of licence for three days, a $200 penalty and a $250 licence reinstatement fee -and the likely loss of one’s vehicle for the three days, plus towing and storage fees. For those with more than one reading above the legal limit, the penalties escalate.

In a class-action suit, one person sues on behalf of all the people who have similarly suffered.

The lawsuit has to go to B.C. Supreme Court to be classified as a class-action suit before proceeding. That will likely happen within three months, Thomas said.

He will ask for repayment of costs incurred by people who were improperly penalized.

This week, Solicitor-General Rich Coleman said the province is considering allowing drivers to appeal roadside penalties for impaired driving offences.

That would make no difference to the lawsuit, Thomas said.

On the heels of this lawsuit, the BC government announced that there will now be an appeal process for a driver who wishes to contest this roadside suspension, but the appeal may be too little, too late.

Here in Washington, breath testing is subjected to numerous and rigorous challenges by defense attorneys such as myself.  These challenges routinely target the claimed accuracy of testing in a DUI prosecution.  These challenges are important due to the fact that what hangs in the balance is not only the potential loss of a drivers license, but most importantly freedom vs. incarceration.

It is well known, and established by law here in Washington that the same handheld devices described above, used by law enforcement here, are not reliable proof of anything other than establishing that a person has consumed alcohol.  Administration of these tests and the readings provided are only admissible in a hearing to challenge the lawfulness of a driver’s DUI arrest.  They are not admissible in a trial due to their unreliability.  This is set forth in Washington Administrative Code (WAC) 448-15.  The devices use “Fuel Cell” technology and this type of technology will provide false positives as a result of cold weather conditions, recently consumed pizza, and dozens of other factors.

The more advanced technology used utilizes “Infrared” testing.  The basic explanation is that light passes through a small sample of air blown into the machine by an arrested person.  While this technology is better, it is far from perfect and currently it is  behind the “scientifically reliable curve.”  As a result, Washington has cleared the way for a new generation of breath testing machine, and has purchased about half of the units needed.  While this leap into the current breath testing generation is admirable, I can’t help but wonder why the units purchased simply sit in storage rather than be deployed immediately?  Perhaps it impeaches the accuracy and reliability of the current machine in use that has been around since the last century (1987).

A DUI charge is full of complex evidence that only the most experienced DUI lawyer can demystify and expose its limitations and “secrets.”  As a result whether you are over .02 (Minor DUI), .04 (CDL DUI), or .08 (DUI), or if you are under the legal .08 limit, the charge is not to be taken lightly nor is it for the inexperienced.  A successful outcome requires a highly specialized level of understanding, skill, passion, and compassion.