On August 10, 2015, we published the evidence about the defective breathalyzers used to issue Immediate Roadside Prohibitions over a 4.5 year period in British Columbia. Last week we explained some of what we did about the defective breathalyzers.
This has been a massive project in our office. Although we would have liked to tell everyone about what we were doing many months ago, we didn’t want to call further attention to the issue because it might have compromised the defence for some of our clients. We alluded to it. Some careful readers of our blog figured out much of what was going on. In another blog post we’ll explain how this was the issue behind the Red Alert that we published last December. For now, however, we want to tell you how to find out if you blew into a defective breathalyzer.
Once you have the disclosure, you simply need to look at the serial numbers(s) of the ASD(s) you blew into.
How to find out if you blew into a defective breathalyzer
The defective batch of ASDs (the roadside breathalyzers we use in BC) are the Alco-Sensor IV DWF model in the serial number range 100,000 to 102,400. We’re quite confident that the defect also appears at higher serial numbers. Still, we simply don’t have sufficient data to confirm that it goes beyond. We have seen nothing to suggest that the defect was corrected in devices manufactured after 102,400.
Do you have your IRP disclosure?
In order to determine if the ASD you blew into fell into this range you need to review the IRP disclosure that the police prepared and faxed to the Government. If you don’t have the disclosure, you need to get your hands on it. If you already have it, get it out and follow along at “Step B” below. If you haven’t got your IRP disclosure, read carefully and follow the directions in “Step A.”
Step A: Getting your IRP disclosure
An easy and certain way to get your IRP disclosure is to compel the Government to give it to you pursuant to the Freedom of Information and Protection of Privacy Act. We rely on this legislation every day.
The request for IRP disclosure needs to go to the office that holds the documents, if you know who they are. In this case, it’s RoadSafetyBC, A.K.A. the Office of the Superintendent of Motor Vehicles. They have control of the IRP disclosure and they have a fax number where you can send the request.
We encourage you to fax in your request because it’s the quickest way to get the project started. The RoadSafetyBC fax number is 250-356-6544. We’ve created a fax you can use. Just fill in the blanks.
Simply copy and paste from here.
Fax from (sender): _____________ Sender fax number: _____________ Date: ___________
Fax to (recipient): RoadSafetyBC Recipient fax: 250-356-6544
Re: Disclosure of the IRP Report to Superintendent
_________________ (write your name here)
BCDL: ___________ (write your driver’s license number here)
I write pursuant to the Freedom of Information and Protection of Privacy Act to request a copy of documents that you hold which pertain to me, specifically the Report to Superintendent and all other disclosure provided to you by the police concerning the Immediate Roadside Prohibition that was issued to me. Please ensure that any information that identifies the Approved Screening Device model and serial number is included in the complete disclosure if that information is in your possession.
I remind you that you are required to comply with my request in accordance with the Freedom of Information and Protection of Privacy Act and the timelines in law set out therein. If you do not comply in accordance with the Act, I will pursue my legal options including submitting a complaint to the Office of the Information and Privacy Commissioner of BC.
Please fax the complete disclosure to me at: ____________ (your fax number)
OR:
Please mail the complete disclosure to me at:
______________ (your address)
______________
______________
Thank you for your prompt attention to this matter.
Yours truly,
______________ (sign here)
Fax that off to RoadSafetyBC. The Government has no choice but to send you your disclosure pursuant to the Act. You should get a response of some sort within 30 business days.
Step B: Determining whether you blew into a defective breathalyzer
Once you have the disclosure, you simply need to look at the serial numbers(s) of the ASD(s) you blew into. For blow “Fail” or “Warn” IRPs the officer is required to record the serial number on the document entitled “Report to Superintendent.”
If you were issued an IRP for alleged failure to blow/refusal, the serial number may be recorded in the disclosure but typically the officer is not required to record it. We think that this is wrong in law, and the defective breathalyzer debacle highlights the reason we believe this, but that’s the way it is right now.
If the serial number of one of the breathalyzers is between 100,000 and 102,400 then that device falls within the bad batch.
Step C: You’ve determined that the ASD was part of the bad batch
In a future post we will explain the steps you should take if you’ve determined that the ASD used in your case was part of the bad batch. If we acted for you and you received your IRP in the second half of 2014, we’re already on the project. For older files, we’ve selected certain emblematic cases and we’re moving ahead with them. We’ve already got matters set for appeal in BC Supreme Court concerning issues arising from the use of these breathalyzers, so you can stand by for that.
If you had another lawyer, you should bring this to their attention. We only provided this evidence to a couple of other lawyers because we wanted to ensure that it was not used in a manner inconsistent with the best interests of our clients. Some lawyers learned that we had “something important” and contacted us seeking to obtain it. We refused because it was not in the interest of our clients to disclose it.
Why don’t we get it for you?
We encourage every person who got an IRP to get their disclosure and see if they blew into a breathalyzer from this batch. This is something you can do for yourself. It costs you nothing and you can do it quickly.
If, nevertheless, you want us to determine whether you blew into a defective breathalyzer, call us and we’ll take care of it.