When we read news stories about police issuing dozens of 90-day Immediate Roadside Prohibitions at one roadblock, the first thing that comes to mind is that their devices are not functioning properly.
In response to a recent TikTok, a police officer indicated that a mere 5 minutes was all that was necessary to wait before providing a breath sample at the roadside stop.
In another memorable matter from a few years ago, an officer testified that he knew a driver was well above the legal limit because the Approved Screening Device he used registered a “Fast Fail.”
All of this indicates that many police officers misunderstand the basic functioning of the roadside breathalyzers, which is a cause for concern.
The function of an ASD
In British Columbia and Alberta, the roadside breath tester used by the police is the Alco-Sensor FST. In each province, the software is different, but the basic functioning is the same.
The testers are approved for use in law, which makes them “Approved Screening Devices.” The original intention was to use them to screen people for further scrutiny in a criminal DUI investigation. Now they are also used to issue IRP driving prohibitions right there at the roadside.
ASDs get used a lot. Police officers may become comfortable using them, but it doesn’t mean they understand what’s going on.
ASDs do not measure blood-alcohol concentration.
They collect a minuscule sample of breath on a fuel cell that then generates an electrical current. The ASD interprets the electrical current and comes up with an estimation of the alcohol content. The ASD does not know if the alcohol came from the person’s lungs, mouth, lips, or other contaminating sources.
Unfair readings
Bearing in mind that you can’t see it and never know the source, there is always a speculative presumption. But that is not the only presumption.
The reading displayed on the FSTs used in Canada merely covers a range, and there is no information about where the sample falls in that range.
An average governs the range itself. If the reading is near the line and the subject blowing is above average, they may blow under yet have a blood-alcohol concentration over the limit. Vice versa, someone may have a blood-alcohol concentration under the limit yet blow a Fail if they are below average.
How does it feel to know that you’re facing punishment if you’re different than the average? It doesn’t seem very fair.
By this point in life, you probably understand that the world isn’t fair.
Questionable integrity
But what about simple integrity? The officer who commented on TikTok was under the impression that a 5-minute period after last having alcohol in the mouth was a safe waiting period to get a reliable sample of breath.
This, of course, is not their training. Apparently, some police officers tell one another, and apparently, some come to believe it.
Interestingly, when the first ASD was introduced, the RCMP trained officers to wait 20 minutes to ensure test integrity. At some point in the 1990s, the training changed to 15 minutes. We see officers trying to time it to the second before taking the test, and some seem to think 5 minutes is fine.
Certainly 15 minutes is quite a bit longer than 5, with 20 being even better.
A few studies have concluded that mouth alcohol can be retained for more than 40 minutes, although at this point, the amounts were quite small.
Problems that arise
Keep in mind in BC; we don’t know the estimated breath-alcohol content, so crucial information is missing to assess the reliability of the reading.
For example, if the reading was 300 mg %, and the person blowing looked, walked and talked just fine, one could conclude that perhaps mouth-alcohol contamination was an issue. Or was the device incorrectly calibrated?
The missing information, the possibility of a procedural error, a device malfunction, or being on the wrong side of the average all present the possibility of wrongful punishment.
What about a “Fast Fail?”
You might have heard officers say they “got a fast fail” and, as a result, knew a person was well over the legal limit. What they mean by this is the ASD registered the ‘Fail’ almost immediately after the subject blew into it. Their reasoning is clear: the more alcohol in the person, the quicker the ASD will know if the person is over the limit.
The problem with this is that it is completely wrong and has important implications.
Once the sample is captured for analysis, the internal sensor, called a fuel cell, needs to convert the alcohol into information the software can interpret. The more alcohol, the longer it takes for this process.
So, if it takes a long time, you may suspect that there was a lot of alcohol. That is important if the person looks sober. Can you trust the sample?
Probably not, but few officers seem to understand that.
Now, what happens when the person looks like they have been drinking and it takes a long time for the ASD to register the ‘Fail’ reading? That surely must mean that the person is over the limit, right? Not necessarily.
Different registering times of ASDs
There is more than one reason the device may take a long time to register the reading. It’s impossible to say with certainty that we know all the reasons it may take a long time.
We know that when the sensor, the fuel cell, is depleted from age after someone has blown raw mouth alcohol into it or after many cycles of use, it loses accuracy. And therefore, it takes longer to turn the substance captured (ethanol, acetone, what have you) into an electrical current for the software to interpret.
This brings us back to a roadblock that is so busy that the officers run out of time and tow trucks to deal with all of the drivers who blew ‘Fail.’
Were the officers ones who think a ‘fast fail’ coincides with a high blood-alcohol level? Do they think 5 minutes is a safe period to wait for mouth alcohol to dissipate? Are they using ASDs that are functioning properly every time? Are they properly programmed? Are they properly calibrated?
Current concerns
Between 2010 to 2014, our office spent thousands of hours and thousands of dollars collecting information that showed the ASDs used back then were malfunctioning alarmingly often.
The police response was to replace the devices and stop recording the evidence that would show what problems were experienced. Now, we have not found a way to get that information promptly.
If the Victoria police discovered that one or more of their ASDs were malfunctioning or that officers were administering them wrong, we guarantee they would not report their error to the media. Officers who think a five-minute waiting period is sufficient or a ‘fast fail’ means the subject has a high blood-alcohol concentration are unlikely to understand the concerns about test integrity in any event.
Your suspicions are correct. The world isn’t fair, and neither is alcohol-breath testing.