Worthy goals, harsh consequences
The roadside testing devices that now are judge and jury are not always accurate
Mario Knezevic’s family arrived from Europe to help him celebrate his bravery medals for rescuing and resuscitating a drowned two-year-old.
He didn’t expect he would also have to introduce them to B.C.’s new arbitrary, anti-drunk-driving program and its severe, some might even say draconian, punishments.
More importantly, perhaps, he was surprised it left him with such a bitter feeling of being treated unfairly and far too harshly.
And he is one of many thousands, if anecdotal evidence of lawyers is to be believed.
The B.C. government’s decision to rely on roadside breath tests prohibited by the courts for use as evidence may come back to haunt it – evoking cynicism from citizens and censure from the court.
Police documents obtained exclusively by The Sun indicate the devices being used may give false readings and malfunction in many other ways.
The hand-held units were appropriate for their old use – screening drivers who were then tested on more reliable machines with their Charter rights respected.
Now drivers are being stripped of their rights and the devices are being used to impose harsh and stigmatizing punishments, raising serious issues of basic fairness, proportionality and constitutional legitimacy.
The whole disturbing issue came into focus for Knezevic at the moment he should have been basking in the glow of the community’s recognition of his heroism.
A year ago, Knezevic pulled the unconscious girl from a Surrey backyard swimming pool and saved her with CPR skills he learned more than a quarter century ago.
“I panicked, but it all came back to me, exactly like I was in the classroom,” he remembered.
“I put her down on the concrete. Her mouth was black, not blue, black, I didn’t think she would come back.”
She did, with no ill-effects in spite of spending five minutes underwater unconscious, likely clinically dead.
Knezevic and his family partied the night away in March of 2011, when he was awarded the gold medal (along with a silver) by the B.C. and Yukon Lifesaving Society for “the most heroic rescue” of the year.
He awoke with a start the next day, about 4: 30 p.m. – friends and kin would soon arrive at his Burnaby condo to continue the festivities and he had no liquor.
The 44-year-old, who came to Canada in 1991 from Croatia, threw on some clothes.
“I jumped in my car to go to the beer and wine store to buy [liquor],” he said.
Returning home, Knezevic was pulled over by an RCMP officer who ultimately asked him to blow into a roadside breathalyzer device.
“I hadn’t had a drink,” Knezevic insisted in an interview, still astounded the Mountie told him he failed.
He discounted the idea that he consumed so much the night before, he was still intoxicated – he felt fine, his eyes were clear, his speech normal, his physical responses steady, and he had slept for seven hours.
“I said, ‘No way! I haven’t had a drink – I just went to get [the alcohol]. Let me do it again.'” He did, and again the officer said Knezevic failed.
“That’s not possible,” he told the cop. “Didn’t matter. They impounded my car for a month, gave me a three-month suspension, plus after that, they said I had to install an Interlock [alcohol detection device that requires a driver blow into it before the vehicle will start] for one year.”
For Knezevic, as for thousands of British Columbians caught in the new anti-drinking-and-driving driftnet who believe in the goals of the vaunted strategy, the disillusionment and bad taste left in his mouth were unexpected.
Unlike radar guns that are checked before and after each shift, or reliable tabletop breathalyzer units that use an external device to ensure calibration, the hand-held AlcoSensor IV DWF Screeners used in the province are checked and calibrated only once a month.
Freedom-of-information requests for calibration and maintenance reports show police forces are using their own record-keeping systems and sometimes dated recalibration forms from 1998.
There is a paucity of detail in the reports amid suggestions faulty devices may have been used on drivers.
“It’s frightening,” said Vancouver lawyer Paul Doroshenko, who defends impaireddriving cases and made the information requests to learn more about the devices.
“There is little consistency with the way calibration information is recorded from one [police] department to the next. If you were honestly using them as intended, as screening devices before employing a more reliable machine, it would be fine. Using it in this manner demands far more rigour.”
The devices have been a focus of critics since the new stricter drinking-and-driving regime came into effect last Sept. 20.
On Nov. 19, Victoria Police Chief Jamie Graham, as chairman of the B.C. Association of Chiefs of Police traffic safety committee, recalled the 2,200 units in use across the province because of an unreasonable margin of error.
The RCMP lab found the units could indicate a reading over .05 when the driver was actually under it. The devices were recalibrated so the “warn” reading now is putatively obtained if the driver blows .06, recognizing the potential machine error.
Regardless, the devices do not give a numeric readout but flash only “warn” or “fail.”
That’s why the RCMP training manual warns officers that results from the units “do not always correspond with those of a subsequent Approved Instrument test.”
Doroshenko said he sought for months – even complaining to the privacy commissioner – to obtain the documents from the province’s 11 municipal departments and RCMP.
In Washington state, information about breathalyzer maintenance is available online.
The RCMP, Doroshenko said, has dragged its feet providing such data. For instance, detachments have told him to call Ottawa or that they don’t feel obligated to release the material because criminal disclosure requirements don’t apply.
The Delta police department refused to provide the information, saying in a letter that doing so would “definitely interfere with the operations of our department, specifically assigning a traffic member to spend many hours gathering and producing the data.”
But other forces are complying.
New Westminster produced two pages of maintenance records that showed one unit had a major fuel cell leak but little other detail; the department’s calibration check sheets often didn’t record results.
Oak Bay’s four units all appear to be working, but again they don’t record the results of the calibration tests, so you can’t see if there is a trend.
Central Saanich had significant problems with two of its 12 units.
Port Moody’s reports reveal a unit “in multiple times for repairs & is still not working;” another “unit not working;” a third “will not SET when button is depressed;” another required its battery contacts and temperature sensor resoldered.
Here is a sampling of Abbotsford’s 27 units: Unit 41149 was over-reporting Oct. 28 but has since gone missing; unit 41150 was permanently removed from service in February because it was overreporting; unit 41153 was overreporting Oct. 28 and underreporting Nov. 10; unit 56513 over-reporting Feb. 26; unit 61142 over-reporting on Dec. 3; unit 85246 would not calibrate on Dec. 13; unit 85247 was over-reporting Feb. 27; unit 85249 was over-reporting May 4 . Units out of calibration may have been giving faulty readings for up to a month. But how often a unit is used each month is unknown because it depends on enforcement patterns.
The records show that aside from the variances recorded from month to month, the devices have malfunctioned because of poor electrical contacts, faulty thermostats, damaged mouthpiece retainers, wonky circuit boards and more.
“They are a screening device,” lawyer Doroshenko emphasized. “They [the police] know they are not perfect, they know they make mistakes. Now they have been elevated to an evidentiary level and used to punish people harshly based on their results. It’s wrong in my view.”
The devices used to be recalibrated every two weeks, but since they were only used to help trigger a criminal investigation, not as evidence, a 30-day period between checks was deemed sufficient.
In a 2005 decision, known as R. v. Orbanski, the Supreme Court of Canada said that these kinds of roadside checks, during which a driver is detained and unable to exercise his or her right to counsel, are only allowed under the Charter if the information obtained is not used against the motorist.
The results of roadside vetting for alcohol consumption cannot be used as evidence to incriminate the driver on a criminal charge, only to establish reasonable and probable grounds to demand a proper breathalyzer test.
A ruling in B.C. Supreme Court in 2009, R. v. Shultz, confirmed that Orbanski similarly applied to the Motor Vehicle Act, the provincial law under which the new regime is authorized.
Civil libertarians argue Victoria is using legislative sleightof-hand to make the court rulings and drivers’ Charter rights seemingly vanish.
With changes to the Motor Vehicle Act, the province also is imposing stiffer-than-criminal punishment and transgressing on federal jurisdiction.
“It’s quite a disturbing piece of legislation,” said Doroshenko, who has many clients upset at what happened to them. “I’m shocked by it.”
Victoria defends its approach and disagrees with opponents of the law, but won’t comment because the issue is before the courts. Similarly, lawyers behind the constitutional challenge are reticent.
A criminal conviction for impaired driving or blowing over .08 on a reliable breathalyzer carries a punishment that on average amounts to a $1,000 fine, a record and a one-year driving prohibition.
In B.C. you must also take the Responsible Driver Program and, when your licence is reinstated, it restricts you from operating any vehicle that does not have an Interlock.
Getting to that point is expensive and, because the full panoply of Charter rights is in play, time consuming – it usually takes over a year unless there is a guilty plea.
Under the new system, you get an immediate three-month driving prohibition, a year’s driving restriction with the Interlock, have to take the course and pay nearly $5,000 in fees and fines – with no legal rights.
This approach was intended as a solution to the spiralling costs associated with the thousands of drunk-driving charges that clot the legal system – judges, prosecutors and police salaries, etc. – and to generate money.
The framers of this scheme thought as many as 13,000 drivers a year would be captured. It could be double that given the numbers generated in the first six months.
This is all via a process that takes 20 minutes compared to the four days it reportedly costs in police time for each drinking-and-driving criminal prosecution.
Although some are appalled, the provincial government consciously embarked on this path. It was discussed in the legislature.
The B.C. Liberals and the NDP both support it – this is not a partisan issue.
Potential court challenges were raised and considered. As a result, the law was deliberately crafted in an attempt to skirt constitutional landmines.
First, last July, without fanfare the government changed the duties of police officers under the Motor Vehicle Act.
They were no longer required to provide sworn information, for instance.
The old Administrative Driving Prohibition regime approved by the courts did not allow that and there are other significant differences.
It’s understandable the government did this. There’s a serious problem with drinking driving and no one has come up with a good solution so far.
There is enormous pressure from special interest groups and a public outcry over the continuing carnage. And this big stick seems to be working – deaths reputedly fell to 30 from the five-year average of 61 during the first six months the new rules were in effect.
However, drivers are being pulled over putatively for the criminal offence of drinking driving, but they are no longer being dealt with criminally and are losing their rights.
The goals are worthy, but has the government found the right solution to drinking drivers and implemented it in a constitutionally correct manner?
Should the punishment be this stiff, bearing in mind the devices are not checked daily, were not intended for this purpose and can have major problems that the officer at the roadside may not notice?
B.C. Supreme Court Justice Jon Sigurdson is deliberating about all of this and more in a challenge to the law. His ruling is expected by fall.
Meanwhile, a month before his prohibition expired, Knezevic called to have an Interlock installed on his luxury Audi A8L.
For the next month, he bounced between garages – two in Vancouver, two in Richmond – vainly trying to have the device put in his car. No one was able to do it.
He called Motor Vehicles and told them no one could install the device on the $140,000 vehicle: They said, “Sir, you have to sell or downgrade your vehicle.”
“I didn’t have a choice,” he complained, still irked.
“I sold the car. I lost $22,000 on it. Then I have to buy another car and I can’t get a high-end diesel one because they’re not sure they can put it in that, either. I don’t want to buy a piece of junk, so I got a GTI Golf, brand new $41,000. That took another month without a driver’s licence. It was like being in jail.”
Today, Knezevic drives his Interlock-equipped VW and can’t wait for his year-long restriction to expire and to lose the embarrassing device.
He asked ICBC to give him a month’s credit for the four weeks beyond his initial 90-day prohibition it took him to sell his car, buy a new one and have his licence reinstated.
They told him too bad: It was a one-year restriction from the time his licence was renewed.
He still doesn’t believe there was residual alcohol in his system: It was a flaw in the device. “Seven hours? I slept seven hours.”
The small businessman, who runs his own maintenance and construction company, thinks the device was wrong and that he should have been able to question its functioning, at least to see what he blew, or have some rights of appeal.
“I spent $500 for a lawyer and he told me there was nothing could be done – you can’t win an appeal,” Knezevic said, He was told the law permits only a handful of defences: You weren’t in control of a vehicle, the test didn’t indicate a fail or warn, you didn’t refuse to blow or had a reasonable excuse for not blowing or failing.
“It’s unfair. . . . And they didn’t give me credit for that month and they forced me to sell my car, I lost money and they forced me to buy a car I didn’t want. And I wasn’t drinking – the Mountie could see I was totally normal.”
More detail about B.C.’s new anti-impaired driving program is available on the Web: http: //www.pssg.gov.bc.ca/ osmv/impaired-driving/index. htm#enforcement.
The amendments to the Motor Vehicle Act that established the new regime were part of Bill 14, but the government brought the Administrative Driving Prohibition changes into effect earlier.
Here’s a link to the bill: See section 9: http: //www.leg. bc.ca/39th2nd/1st_read/gov14-1. htm.
Here are the MVA sections as of July 27, 2010: http: //canlii.org/en/bc/laws/stat/ rsbc-1996-c-318/82646/part-3/ rsbc-1996-c-318-part-3.html.
Here they are as of July 30, 2010: http: //canlii.org/en/bc/laws/stat/ rsbc-1996-c-318/83273/part-3/ rsbc-1996-c-318-part-3.html. The important sections are 94.5(1) c1.
Washington state: Information about its breathalyzer maintenance program is available online at http: //breathtest.wsp. wa.gov/welcome.htm; and http: // www.wsp.wa.gov/forensics/impdriving.htm.