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When breathalyzers fail

When breathalyzers fail

When breathalyzers fail

No machine or device is infallible. Apple spends billions on the development of the their devices. Nevertheless, iPhones still screw up from time to time. If your iPhone freezes up while you’re playing Plants vs. Zombies it’s not the end of the world. But what happens when breathalyzers fail? The results are typically catastrophic.

We know that breathalyzers fail — we’ve got hundreds of pages of internal police documents showing catastrophic failures of Alco-Sensor IV DWF breathalyzers. And we’ve revealed some of the more disturbing problems to the media, such as the ASD in Abbotsford that apparently just gave Fail readings. As far as we’re concerned, it’s ridiculous and dangerous to base any punishment, such as an IRP, on a roadside breathalyzer. But that’s what the Government does in BC.

We have police breath testing equipment (no other law office has a collection nearly as big as ours) and we test all sorts of scenarios to identify flaws in the devices, the testing and the procedures. We’re amused and pleased by the fact that much of the police procedure for maintaining and calibrating ASDs can be directly attributable to something we identified and made public. When we read through the most recent ASD Calibrator’s Manual we can list off all of the procedures that are designed to fix the holes and problems we identified. We’re responsible for significant parts of the current procedure, and without a doubt we’ve performed a valuable service to the people of British Columbia.

Never content with the state of things, we keep testing breathalyzers in the Acumen labs. Saturday March 15, 2014, we were testing ASDs in a controlled setting, looking for data on sample variance, when we observed a number of dangerous outliers.

An outlier is a point of data so far off the data set that it’s usually assumed that there was a mistake in testing. We see in breathalyzers studies that any outlier data is usually omitted from the final publication. This has always bothered us because mistakes in testing are commonplace at the roadside (a DUI investigation test is never the same as a police lab test) and because it suggests greater reliability than should necessarily be the case. The issue seems to be that most of the tests to look at breathalyzer functioning is performed by the manufacturers and the police — two groups that have the same interest in the outcome of the testing. And so problems are easily swept under the carpet.

When breathalyzers fail who is a witness?

Our testing on Saturday revealed lots of interesting data, but as we’ve alluded there were also disturbing outliers. Luckily, the most disturbing was caught on video.

Clients often tell us that they we’re blowing into the breathalyzer as hard as they could, and the officer was yelling at them that they weren’t blowing. Then the officer blows into the ASD and it appears to work for the officer. Usually this ends in a 90-day IRP for alleged refusal, fines, towing, storage fees, responsible driver program course and an interlock for a year.

We know that even well-maintained breathalyzers will not function properly every time. We’ve seen strange, unexplainable breathalyzer readings hundreds of times. But rarely have we been ready to capture it on video. This weekend, however, we got lucky.

Kyla’s refusal

We uploaded the video to Youtube. Kyla was checking her blood-alcohol content on an Alco-Sensor IV DWF as part of a test to compare different Approved Screening Devices and the readings produced after one drink. You need to remember that each of the lawyers in our office who deal with IRP defence, Kyla and Paul, all have ASDs in our office — we keep them handy, we know how to use them and we’ve each blown into them hundreds of times. And we’ve seen completely unexplainable things. But never have we caught it on video.

In this case the video tells the tale. Kyla was blowing into an ASD. We all stood in shock because no matter how hard she blew, the device indicated that she wasn’t blowing. She too was in shock. She was so in shock that she waved her arms to get Paul’s attention and we made the short video.

In the first part you can see Kyla attempting to provide a sample into the ASD. She was making a legitimate attempt to blow. You can hear the air coming out. In theory, an Alco-Sensor IV ASD should display one plus sign with even marginal airflow. She was blowing plenty hard and the display still read “Test.”

Kyla had tried to provide a proper breath sample for about 20 seconds before we started the video. The display continued to read “Test” although she was blowing hard. You will see in the video that Paul then attempts to provide a sample and the device works.s

This is just like those cases where the officer blows and it seems to work for him, but the poor person at the roadside ends up with a 90-day IRP for refusal.

What does it mean?

The video of Kyla’s refusal is clear evidence that even if you’re trying to blow, sometime the breathalyzer will fail to function properly. Innocent people end up with 90-day IRPs in cases just like this.

Notes for cynics:

We expect that some cynics and police officers will say that Kyla should not have held the ASD. For the record, it would make no difference who holds the device. And indeed, Paul held it when he provided a sample.

Others will want to say the device was not properly maintained. In fact it was serviced at the official supplier for this breathalyzer in Canada and it is not due for service until September 2014.

Others will claim that we faked the video. There were three additional witnesses, all of whom were shocked by what took place.

Sometimes breathalyzers fail without any explanation. This time we caught it on video. This is why we defend IRPs.

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