A Proper Breath Test (PBT)

When you are stopped by the police at the roadside, they must not delay you unnecessarily. It is your constitutional right in Canada to not be arbitrarily detained by a police officer. If you are detained, you must be informed of the reason, i.e. that you are under investigation and the crime for which you are being investigated. And you must be told about your right to counsel, i.e. to contact a lawyer and get legal advice. If you are being investigated for impaired driving, all of these Charter rights are in play.

When the police use an ASD, the hope is that you are not being detained arbitrarily. It is on the basis of a suspicion, not just cause or reasonable and probable grounds. But it is pursuant to law because the officer is following the sections of the Criminal Code, and it is hoped, not departing from them. For the detention to be reasonable, it must be quick. So, if the officer concludes it is appropriate in law to use an ASD, he or she must make the demand forthwith and present the ASD to the driver forthwith.

If there is evidence of recent consumption, the forthwith requirement is relaxed permitting the officer to wait in presenting the device to the driver (see: R. v. Bernshaw, [1995] 1 S.C.R. 254). It does not permit a delay in making the demand forthwith.

The problem is that, as we have discussed many times over, alcohol in the mouth will cause an artificially elevated reading. It can take some time for alcohol to disperse.

So in order to comply with the legal rights of the driver, the police make the demand and take the test right away. But in order to take a reliable test, they must delay taking the sample. And they are generally not allowed to delay taking the sample.

As a result, a percentage of roadside tests are just wrong usually due to mouth alcohol. If the driver is taken back to the detachment, it may be cleared up by a Proper Breath Test (PTB), which is taken on an instrument approved for the purpose of collecting evidence. Screeners are for screening people and Approved Instruments collect evidence that can be used to prosecute in court.

Since the days of the Breathlyzer, police knew that Proper Breath Tests include an observation/deprivation period of at least 15 minutes, followed by a test. Then a second observation/deprivation period of at least 15 minutes must be conducted, followed by a second test. If the results of both tests agree within 20 mg%, then it is unlikely that mouth alcohol elevated the results. If the results are greater than 20 mg% apart, then it is likely that they are incorrect due to mouth alcohol and they cannot be considered a Proper Breath Test.

With the IRP scheme, Proper Breath Tests are not conducted. The Alco-Sensor DWF Screener has no function to identify mouth alcohol. An observation/deprivation period is not permitted in law unless there is actual evidence of consumption in the 15 minutes before the test. Even if you blow twice on two separate ASDs, the tests are not taken with a minimum 15 minute observation/deprivation period in between and because the results are not numerical, the officer has no idea whether they were within 20 mg% of each other.

The purpose of Proper Breath Tests is to ensure that people are not wrongly punished. There is no such safeguard with the IRP scheme.

Postscript:

Of course, the 90-day IRP for Fail is on the shelf at the moment due to Sivia and the police in BC no longer issuing these prohibitions. If you are still without a licence due to a 90-day IRP for blowing Fail, give us a call. We are still filing Petitions on these matters to get people back on the road. There is no point in waiting — you are only punishing yourself for no good reason.

If you receive a 3, 7 or 30 day IRP, or an IRP for allegedly refusing to provide an ASD sample, call us. We are disputing these as always, and looking for good cases to Petition to BC Supreme Court so we have an opportunity to make clear to the Court the historic and scientific basis behind the requirement for a Proper Breath Test.