Regularly we represent clients who refused to blow because they don’t trust the breathalyzer. We get it. We don’t trust the breathalyzer either, generally speaking. But as a strategy to deal with the police in a DUI investigation, refusing to blow because you don’t trust the breathalyzer is a mistake. Here’s why.
How many people blew into this breathalyzer in the weeks and months before they identified this problem? Nobody knows.
Don’t trust the breathalyzer
The breathalyzers we use in BC for Immediate Roadside Prohibitions were never intended be relied on for the basis of punishment. They’re described as “Approved Screening Devices” because they were approved for use in screening drivers to see whether the drivers should be detained for further investigation and possibly to provide breath samples into a more complex instrument designed to obtain and record breath-test evidence.
So the roadside breathalyzers, i.e. ASDs, were not intended for punishment. Nor should they be used for punishment in our view. The reason is that the procedure for taking the samples does not facilitate reliable samples, ASDs don’t record the evidence and they’re simply not reliable enough to rely upon for punishment.
Here’s an example. A breathalyzer was returned from annual inspection by the distributor, Davtech. After it was returned and had passed inspection, the officer tried to calibrate it. Using the liquid calibration method it seemed to work fine. When he tried to use the gas method to test calibration, he got readings over 400 mg%! The expected reading should have been approximately 79 mg%.
How many people blew into this breathalyzer in the weeks and months before they identified this problem? Nobody knows. You could expect that every sample would have resulted in a FAIL reading.
What do you do if you don’t trust the breathalyzer?
The problem is that you have no idea if the breathalyzer into which you’re blowing is, in fact, reliable. You just can’t know one way or another when you’re standing at the roadside and a police officer is holding the ASD near your mouth.
Regardless, however, your obligation is to try to blow. Because really, what is your option?
The only way you may lawfully refuse to blow is by having a reasonable excuse. Is it reasonable to refuse because you don’t trust the breathalyzer?
The information you have about untrustworthy breathalyzers is based on information about some ASDs but it’s not likely that it applies to the specific breathalyzer that the police are presenting to you. Moreover, without attempting to blow you’re making an assumption about the functioning of a particular breathalyzer without engaging in the testing that might reveal the problem. Simply put, without at least legitimately trying to blow, you have no reason to suggest that the particular breathalyzer is untrustworthy.
Sometimes bad breathalyzers reveal themselves
The police at the roadside may not know whether any particular breathalyzer is malfunctioning, but sometimes they observe status messages that we can interpret that reveal the problem. Often in police reports the officers record the messages that were displayed on the ASD. If you’re trained to use the ASD you can spot the problems. That’s why each of the IRP lawyers in our office have taken the manufacturer’s training for the Alco-Sensor FST.
The bottom line
Even if you don’t trust the breathalyzer, you’re still required to make a genuine effort to provide samples when an officer makes a lawful demand in a DUI investigation. Suspecting, believing or even knowing about defective breathalyzers will not provide you with a reasonable excuse to refuse to provide a sample.