A recent episode of Driving Law was joined by Jan Semenoff, an expert on alcohol breath testing and editor of Counterpoint, the journal of science and the law. Jan shared his top 5 biggest flaws of the IRP scheme and discussed his biggest complaints.
We thought it would be useful to share with you the 5 biggest flaws of the IRP scheme they came up with. This is by no means an exhaustive list.
1. Police training
One of the biggest flaws with the IRP scheme is the watering down of the investigative techniques officers use under the IRP scheme compared with a criminal impaired driving investigation. We have seen the manual the police use for IRPs (it’s available online), and the training skips over many procedural protections.
There is a lack of sufficient training of the operators of approved screening devices (ASD). A qualified technician, who takes samples of breath back at a police detachment, gets a five-day course in using the alcohol breath test equipment. A police officer using an ASD at the roadside? Just five hours.
That should tell you something about the fundamental difference in understanding the suitability and reliability of results capable of being used as evidence in an IRP investigation.
2. Quality of devices
As for the devices themselves, the simple fact is they are unsuitable for punishment. An IRP results in a 90-day driving prohibition and a $500 fine. However, the quality of the technology used to issue these punishments is not good enough.
It may surprise you, but the evidence the handheld ASDs produce would generally be inadmissible in a criminal proceeding in terms of numerical results. Yet somehow, the devices police use, such as the AlcoSensor FST in BC, are good enough to ban someone from driving for three months.
3. Missing safeguards
As mentioned above, the IRP scheme skips over or fast-tracks a lot of important stuff.
Another important thing it doesn’t have is procedural safeguards, such as observation periods and duplicate tests.
In the old days, and currently, in many jurisdictions in North America, officers are required to observe a suspected drunk driver and note any visible signs of impairment. This can be valuable evidence in an investigation, but there is no requirement for observation in IRPs.
The same goes for duplicate tests. Taking two tests 15 minutes apart can be an important safeguard in ensuring ASDs are functioning properly and the results are reliable, but this is not compulsory in IRPs.
Another safeguard issue with IRPs is the limited disclosure you get.
For instance, there is no post-test calibration disclosed to drivers appealing their IRPs. Some will say calibration records are irrelevant. They’re not. If you are about to lose your licence for three months, you deserve to know if the unit the police used to test your breath alcohol is working as it should.
Without calibration, it’s impossible to know certain things, such as when an ASD is about to break.
IRP investigations normally follow a template. They generally do not discuss everything that leads up to the ASD demand. This could be crucial evidence, either for upholding or appealing an IRP. But it’s simply not required.
Because ASDs cannot detect residual mouth alcohol, if you recently consumed alcohol, they can be fooled into giving a higher reading than they should.
The AlcoSensor FST does not display a numerical value for a person’s blood alcohol content. There are just three options: pass, warn, or fail. So if you took two breath tests, there’s no way of knowing the difference between them.
Say there is a 30 mg of alcohol difference between a person’s readings. This would be a good indication to an officer that there could be a problem with residual mouth alcohol, and maybe they should wait 15 minutes for the mouth alcohol to dissipate before testing them again.
This is a simple change that could improve the reliability of results exponentially.
4. No meaningful officer scrutiny
The investigative processes of police officers under the administrative IRP system are deficient compared with criminal cases. There’s virtually no oversight, except other officers.
The lack of any meaningful officer scrutiny has gotten worse in the pandemic.
IRPs are generally treated the same as a speeding ticket or a parking ticket in terms of investigative acumen and detail. Yet, people, the punishment is, of course, much more severe than speeding or parking tickets.
5. Deficient review process
One of the biggest flaws of the IRP scheme is the review proc.
In general, the legal system does a perfunctory job of looking at investigations. You get a 30 minute hearing over the phone for IRP reviews. That’s it.
There’s a presumption of guilt of anyone who gets an IRP. There’s no cross-examination of the officer who took the evidence. They have no involvement after issuing the IRP. This gives a huge advantage right off the bat to the police.
It’s time we acknowledge that breath alcohol testing is a system. All of the elements that go into an IRP investigation contribute towards creating a reliable result. That’s all we want.
However, if one part fails, the whole thing collapses.
Listen to the discussion here: