Breathalyzer Malfunctions and Your Right to Know

There are many things we do in pursuit of being the best IRP Lawyers. One of them is our Freedom of Information database. We regularly compel the police to disclose to us copies of maintenance and calibration records for approved screening devices by demanding the documents via the Freedom of Information and Access to Information laws. At this point we’ve accumulated thousands of pages of breathalyzer disclosure indicating all sorts of breathalyzer malfunctions.

For a long time many police departments fought us on our requests. Some internal disclosure documents we have obtained show that the RCMP have actively tried to find ways not to disclose the documents to lawyers. The Vancouver Police Department assesses exorbitant fees to get their records. Other police forces delay disclosure for months and months, causing us to complain to the Information and Privacy Commissioner.

We don’t get paid for this work. We do it because we think it’s important to make sure that significant breathalyzer malfunctions are detected and understood.

You probably don’t know this, but the police have instructions to notify RoadSafetyBC when breathalyzers are found out of calibration by more than 12 mg%. In that case, a Notice is supposed to be sent to RoadSafetyBC telling them to cancel any IRPs issued on that device in the previous… Whatever. The police don’t seem to take this seriously in any event.

But what about other malfunctions with the device? What about cases where police officers find that the devices are giving grossly inaccurate temperature readings? That’s what happened in the Buhr case. What about cases where police officers find that the breathalyzer had a problem with an electrical connection or breath manifold, causing it to appear as though the subject was refusing. Like when Kyla attempted to provide a sample. What happens to those people?

You probably aren’t surprised to hear this, if you’ve been following our blog. But the answer is nothing.

There is no system in place to notify drivers when an ASD malfunctions in any other way than to provide inaccurate readings by a factor of 12 mg% above what is expected (not below, even though the reading is still unreliable – they assume that the error is in your favour and that you’re even more guilty).

Don’t you think you have a right to know? Shouldn’t people who receive IRPs be entitled to know about these breathalyzer malfunctions?

In Washington State, the police publish this information online. There is an online searchable database of the maintenance records and history of the breathalyzers used in the state. Occasionally lawyers from Washington State call us for help discerning the breathalyzer records, so we’ve learned about how useful this can be for people in trying to figure out if the breathalyzer they blew into was functioning properly.

As far as we’re concerned, citizens have a right to know the maintenance and calibration history of breathalyzers they blow into.

We know from speaking with police officers and through our FOIs that the calibration information is stored on internal servers. Every breathalyzer in BC has a unique serial number. A simple online form that permits searches by serial number of the maintenance records of an ASD would be easy for the Government to create.

It is a fact that many ASDs have catastrophic malfunctions that render them unreliable. It is a fact that people in BC have received IRPs on the basis of unreliable breathalyzers. But the Government and the Police, who are the holders of the records, don’t make them available to you for your hearing, or indeed through any process related to the IRP. They make the documents difficult and for many people impossible to obtain. Why? Because they are not interested in ensuring you can properly defend your IRP.

The BC Government and the Police want to punish you on the basis of this device. They don’t want you to have access to the maintenance information to defend your case.

Don’t you think you have the right to know the full story? Don’t you think that if you’re going to be punished on the basis of a device that you should know its history?

The Government and the Police don’t want you to know. They don’t want you to have the whole story. They don’t want you to know about a breathalyzer’s history or breathalyzer malfunctions.

The crucial element of an IRP is the ASD. We know that these breathalyzers malfunction. We know that malfunctions can lead to wrongly issued IRPs. Bearing in mind that this is the case, shouldn’t the Government wish this material to be readily available to demonstrate that there is integrity to the IRP scheme?

The problem with the fact that these problems are kept from public view is that it causes misplaced trust in the system that shouldn’t exist. People don’t – can’t – realize that there are malfunctioning breathalyzers. But worse than that is that it causes people to be punished unjustly.

All of this is harmful to the justice system. All of this hurts the reputation of the administration of justice.

(Note: nobody has ever explained why this ASD failed to function when Kyla was providing a sample.)