Blow twice

Of course, Immediate Roadside Prohibitions are back, and clients have been asking us what to do if they find themselves in the position where they’ve been asked to blow. Good question.

If it’s a police officer asking you, and they seem to be suggesting that you blow into a roadside breathalyzer (Approved Screening Device ASD) you should always try your best to blow. The simple fact is that your blood-alcohol level may be lower than you think. It’s possible that you’ll blow a Warn or blow in the pass range.

If you refuse you’ll likely get a 90-day IRP. The defences to a refusal differ significantly from when you provide a sample. For example, we’ve noticed when hearings are conducted, the OSMV tends to ignore evidence of the device malfunctioning when a person is alleged to refuse. We assume this is part of the general tendency over there to pretend that all of the devices function properly all of the time. Which is obviously ridiculous.

If you blow and the ASD registers Fail, you’re in no worse shape than if you had refused, and at least you have the opportunity to blow again. The law is that your second sample must be on a different unit. Although it is possible that both units are malfunctioning (we have identified instances of this) there is no longer any downside if you blow twice.

This is the one significant change in the legislation. In the old 90-day IRP scheme you took a major risk if you decided to blow twice because the second of the two readings prevailed. If you blew a Warn and then Fail, you would get a 90-day IRP. One of the slight modifications is that the lower of the two readings now prevails. Meaning there is now a good reason to demand a second sample.

In Vancouver police officers told us last week that they already know that this will pose a problem for them because they only ever have one ASD with them at any given time. They relied on the threat in Warn instances to reduce the number of times that they would need to locate a second ASD. So, to provide a second sample there will be an inevitable delay while waiting for another unit to arrive. And, as you may imagine, it is expected that everyone will demand to blow twice.

Noteworthy is that clients regularly explain that they declined a second sample because they were concerned that the evidence against them may be that much stronger if they blow twice. That would make sense. But to date that is not how the review process works. In many cases the OSMV would simply assume that the reason you didn’t blow twice was because you knew you were guilty.

So our advice to our clients is that if you blow Warn or Fail on an ASD, demand to blow on a second unit. There is little if any downside risk if you blow twice.