As some of you will know we own an extensive collection of breathalyzers. We don’t know anyone in Canada, other than the police or the government, with a collection as big as ours. After all, if you deal with as many impaired driving files as we do, it pays to know what you’re up against.
We constantly probe our approved screening devices (ASDs) for flaws. Whenever we think of, or become aware of, a scenario that raises questions about a device’s efficacy, we try it for ourselves. We test the test, so to speak. We keep them handy around the office and test ourselves. This has proven to be a fruitful way to identify flaws with the device and the testing procedure.
ASDs are used at the roadside to determine if you have alcohol in your body. Their findings are used Immediate Roadside Prohibitions and can be relied upon as evidence in criminal impaired driving investigations. Suffice it to say, ASD readings can be life-changing so at the very least they should be reliable. Even if a small percentage of ASDs out there are defective, there’s too much at stake to accept that as the cost of preventing drunk driving.
Unfortunately, we’ve known for a while that ASDs are far from perfect. Machines malfunction all the time and ASDs are no different. They occasionally fail to work as they are supposed to when we perform our tests. Sometimes they’ll do something we’ve never seen before. The problem is there are usually no witnesses around when it happens.
In 2014, we brought attention to the perils of a defective ASD when we caught one of these moments on camera. You can see footage of the incident in question below.
In the video you can see Kyla Lee testing her blood alcohol content (BAC) on an Alco-Sensor IV DWF. In the first part of the video, no matter how hard she blew into the device, it simply would not register that she was blowing.
Why is this important? Well, if the device does not register an air flow, it could result in the police issuing an IRP for refusing to blow. Clearly, in this case, Kyla was blowing into the device but the device was not functioning as it should. Fortunately, this was not a real-world scenario. But the issue it raises is still very real. What if this were to happen at the roadside to an innocent driver?
We recently managed to film another example of a defective ASD. On this occasion, it was Paul Doroshenko doing the testing on a different device, the Alco-Sensor FST. Watch below.
As you can see, Paul tries twice to blow into the device. Both times the device indicated that he wasn’t blowing. He is clearly trying; you can hear the airflow. Not according to the device. If this happened at the roadside, the driver would have been charged with refusing a breathalyzer test. The punishment for refusal is exactly the same as the punishment for impaired driving: a 90-day IRP or criminal impaired driving charge.
This whole situation is exacerbated by recent changes to the Criminal Code and recent court decisions which effectively allow the police to conduct roadside breath tests without having a reasonable suspicion of drunk driving. Imagine being an innocent driver having to blow into a device at a roadblock, only for the device to malfunction. You could end up with an IRP through no fault of your own.
Listen, we know that not all breathalyzers are bad. They perform an important function in getting drunk drivers off the road. Our problem is not so much with the devices themselves as it is with the refusal laws we have in this country. The law views refusing a breath test in exactly the same way as it views failing a breath test. However, we are basing refusals on devices which are not 100% reliable.