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The Legend of the Second ASD Sample

The Legend of the Second ASD Sample

The second ASD sample is as rare as a unicorn if they police don't have a second breathalyzer handy.

Earlier in the week we mentioned that the police rarely correctly follow the second sample requirements. Whether it is a Warn range Immediate Roadside Prohibition (IRP) or a now de facto – defunct 90-day IRP for blowing Fail, the police often screw this up.

We received emails prodding us for more information and from people who were never our clients with their stories. So we thought we would explain more of the background

What we found was you are more likely to be offered a second ASD sample during an IRP investigation if you are at a roadblock. If you were simply pulled over on a lonely dark street, a second sample may be obstructed in a number of predictable ways.

The BC Motor Vehicle Act says that if you blow Warn or Fail you can demand a second sample after you are served the prohibition if you demand to do so forthwith.

“After” means after you were given the Notice, and forthwith means “now.”

Yes. Good luck complying with that requirement. You have a window of opportunity to yell to the officer as he or she walks back to their cruiser to drive away. If you do not read the fine print on the back of the Notice within a few seconds, in the dark, despite small faint grey ink on a blue sheet of paper, and then call out to the officer, you are screwed.

This is the section of the Motor Vehicle Act:

Opportunity for second analysis

215.42  (1) If an analysis of the breath of a person by means of an approved screening device under section 215.41 (3) registers a warn or a fail, a second analysis must be performed if, after a peace officer serves on the person a notice of driving prohibition under section 215.41 (3) (d), the person forthwith requests the second analysis.

(2) A second analysis performed under this section must be performed with a different approved screening device than was used in the analysis under section 215.41 (3).

(3) If a person provides a sample of breath for a second analysis under this section forthwith on being requested to do so by the peace officer, the result of the second analysis governs, and any prohibition resulting from the analysis under section 215.41 (3) continues or terminates or is varied accordingly.

What is never discussed and we think was missed in the submissions in Sivia v. British Columbia (Superintendent of Motor Vehicles) was that the police are not required to inform anyone of the right to a second ASD sample into another unit. The material provided to each officer by the Solicitor General’s Office instructs them to read a second sample notice. It is incorrectly identified as a “Demand,” perhaps to make it confusing for the police. But there is no requirement to follow this instruction. And in many cases, it is either ignored or made with an implied threat.

If you are pulled over and blow, not as part of a roadblock, and you ask for a second sample, usually the officer will not have a second Approved Screening Device (ASD) in their cruiser. So if you request a second sample, it will pose some difficulty for them. They will need to call one in, wait until it arrives and then go through much of the process again.

We have had a number of clients tell us that the police realized the second device was uncalibrated or malfunctioning, and they had to call for yet another device. So you can see that it is an irritant for the police to get a second ASD unit on scene on many occasions. Which is why they refuse to provide a second sample on so many occasions.

There is a pattern that emerges which arises from the way these investigations take place. If you blow a Warn, the officer will usually tell you that it can only get worse so you do not want to blow into another device. If you blow a Fail they will tell you that it is no big deal – that it cannot get any worse or any better so there is no reason to blow again. Or they will say that if you want to blow again they need to arrest you and take you to blow at the station, following which you will be charged.

You can see why this pattern emerges. The police do not want to go through the effort of testing a second time, so they come up with an explanation or threat to dissuade the person from seeking a second sample. Or they simple do not tell the person about this right because they have no such obligation. Without legal advice at the roadside, which is denied to you in Canadian law, you have no idea if they are telling you the truth.

We built a library of successful IRP dispute decisions by making regular access to information requests from the OSMV along with decisions in cases we defended. What we found was that, of the applicants who gave evidence that their right to a second sample was obstructed by the police, only a handful were successful. Most of the time their evidence was rejected and the check-box form evidence of the officer was preferred. Many decisions pose the rhetorical question “why would the officer lie?” Then the finding of fact is that the subject must be lying because they have an interest in the outcome. Simply put, you are assumed to be lying because you do not want the IRP. This is a legal test that no one can meet.

It turns out some officers lie because it is easier to lie than to get another ASD on scene and spend an extra 10-15 minutes performing more tests.

So the second test is bullshit. (See: Penn and Teller’s Bullshit)

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