3, 7 and 30-day Immediate Driving Prohibitions for Warn
The most repugnant aspect of the IRP scheme in our view is the reliance on Approved Screening Devices for punishment. ASDs were never intended to be the basis of punishment. Firstly, the test is taken in violation of sections 10(a) and 10(b) of the Charter of Rights.
Because of the Charter violations the courts have consistently concluded that the results cannot be used against an accused for punishment or to speak to the physical state of the accused. The results can only be used by an officer to form an opinion regarding whether to take further action. So there are limits on the use of the reading. This state of the law and rules governing the use of ASD results also speaks to the second point, i.e. that ASD results are not expected to be so reliable that punishment can be justified on the readings.
The ASD test is supposed to be a quick screening test to quickly weed out those who should be taken for a more reliable test. It needs to be quick to minimize the 10(a) and 10(b) violations and to ensure that the detention of the driver does not violate section 9. So to comply with the law, the test must be taken forthwith. And you cannot take reliable tests forthwith. For reliable tests there must be an observation / deprivation period. And you cannot do that quickly.
This is common knowledge in the scientific community, in the scientific literature and it is accepted by police forces around the world, with the exception of B.C. Simply put, a reliable test is conducted after observing the subject for 20 minutes to ensure no burping or regurgitation of alcohol from the stomach. A second test should be conducted 15 minutes later with such an observation in between tests. If the readings are consistent and not too disparate, then they are reliable. As well, the test should be done on an instrument that tests itself each time for calibration and can normally identify the presence of liquid alcohol.
ASDs are not intended to obtain reliable tests. It is that simple. They are a useful tool, but not something that should for the basis of punishment.
We can safely estimate based on the disclosure we have that 20-25% of Fail ASD tests are unreliable. The only way to accurately determine whether the tests are reliable is to take the person for a proper test following proper procedures. And in the IRP scheme this never happened.
The really sad thing is of the 2-3% of people who succeeded on their IRP review, it is possible that almost none of them were part of the 20-25% who are innocent. The scheme using ASDs can never differentiate the innocent from the guilty. It is impossible with this type of roadside testing.
Which is the main thing that bothers us about Warn IRPs.
We have no problem with some level of government deciding to impose a .05 limit. We do not think it is necessary, or that it will reduce collisions to any measurable degree. It may discourage some people from taking the gamble when they have been drinking. Many people will suspect that they are under .08 and risk it. Fewer people may be willing to risk it when they know the limit is .05. In this regard, it may be effective. It may also cause many people to be punished who are no risk at all to public safety.
The point is that we accept that a government can do this. If you do not like it, change the government or pressure the government for a change. The latter has been the method of the tourism industry which has noticed a significant decline due to the publicity surrounding the law. And of course, the restaurant industry has made its views on the matter and the impact of the law very clear.
One would expect that these industries are less interested in changing the government because they fear an increase in minimum wage which would do them greater harm. Understandably, however, they would like to see the Government change its position.
Our main concern is the reliability of the readings. Simply put, all of the problems we found that we then gave to the news media regarding calibration problems, device malfunctions and operator misuse apply equally to 3, 7 and 30-day prohibitions for blowing Warn. In fact, because of the margin of error it is significantly more likely that a higher percentage of people receive IRPs on the basis of false Warns than did on the basis of false Fails.
Moreover, the record of a Warn IRP on your driving abstract can cause you a world of grief. Most people read it as a “DUI” meaning you’re likely to be prejudiced by the notation if you ever need to present your driving record to a future employer.
We are disputing all IRPs, either Warns or alleged refusals. Of course, we continue to be the law office that acts for so many of the people who received a 90-day IRP for alleged Fail.
We also dispute Administrative Driving Prohibitions (ADP), all criminal driving charges including impaired driving, driving over 80mg in 100ml (over .08) refusal to blow, dangerous driving, hit and run, as well as all OSMV prohibitions and Notice of Intent to Prohibit letters.
We may yet forward a further judicial challenge to the Warn IRP scheme. We have been waiting for a case with the right set of facts to run as a test case.