I was under but blew over

You’ve had four pints over 3 hours with your friends at a Nanaimo pub and weigh 180 lbs. You’re not over the limit but you’re pulled over by the Mounties and made to blow. You blow in the breathalyzers and then it thinks and thinks and finally, after an agonizing wait, the reading
comes back as FAIL. You’re shocked. You’re under but blew over. What should you do?

This is a high-stress moment for people from all around BC (not just Nanaimo, our example location). In most cases, the police officer, who have you detained, then arrests you and scares the hell out of you. Then they will tell you that they’ve changed their mind. They’re not arresting you after all; instead, they’re issuing you a 90-day driving prohibition and impounding your car for 30 days!

None of this is good.

How can a person reasonably respond to this situation? It’s like the police are gaslighting you – placing you on an emotional rollercoaster, threatening arrest, making it sound like you’re getting some sort of break, but it’s no break at all. And worst of all, based on what you had to drink, you weren’t over the limit.

It’s cruel. It’s not the way people should treat other people, but this is how BC’s Immediate Roadside Prohibition legal scheme works. And then, after the threats and the emotional rollercoaster, the police officer says “you can provide another sample into another breathalyzer and the lower of the two tests will prevail.”

And so we pose the question again, what should you do? What should you do if you’re under but blow over?

What should you do?

The problem, of course, is that nobody is thinking clearly at this stage. Nothing makes sense. Should you blow again? What the hell does “prevail” mean in this context? Is this cop making it all up or do they plan on tricking you again with this arrest threat? Can’t I call a lawyer?

An aside: The police take away your right to a lawyer

Your right to a lawyer / legal advice is guaranteed in the Charter of Rights, but it’s been downgraded and made meaningless if you’re a suspected drunk driver. You don’t get to talk to a lawyer before you blow and provide evidence that gets used against you. Then, if you blow FAIL, they tell you that you can call a lawyer. Then moments later, on the emotional rollercoaster, they tell you they are not arresting you but rather issuing you an Immediate Roadside Prohibition. Then they tell you, you know what? Now you can’t call a lawyer.

Seriously. We’re not kidding. When it comes to 90% of DUIs in British Columbia, the police will just take away your rights under the Charter of Rights and that’s considered acceptable. You might as well know the truth.

Should you blow a second time? Who can you trust?

If you’re following along and remaining in the shoes of our Nanaimo driver, you probably are starting to wonder what you can trust.

You can’t trust the breathalyzer because you were under but blew over.

You can’t trust the law because first you had no right to talk to a lawyer, then you were told you could talk to a lawyer, and now you’re told you can’t talk to a lawyer (something that undermines the “right” in the mind of any reasonable person).

You can’t trust the police officer because all of this is happening because of them; as a result of your dealings with the officer.

So at this point why would you trust anything the police officer says?

Who can you trust?

Well, the law does in fact say that the lower reading should carry the day. But remember, you’ve been let down all of the ways to this point. At this point, chances are there is nothing in your dealings with the police that provides you with any confidence. We understand.

You’ve been disappointed with the police until this point. So why would you assume another breath sample would help you? In fact, if you know you are under but blew over, you were betrayed by one breathalyzer. Why would you allow yourself to be betrayed by a second
breathalyzer?

Don’t blow a second time

At this point, you probably feel really jerked around. And for this reason alone, it makes sense to refuse a second sample. The police often push people for a second sample. This is part of the good cop / bad cop trick with breathalyzers. But there are other good reasons never to blow a second time.

If the first breathalyzer was defective, why on earth would you assume that the second one would be magically working properly? It’s just as likely to be defective. In fact, the majority of the roadside breath testers in BC (the Approved Screening Devices “ASD”) are at least 8 years old.

How old is your phone? Would you use one that is 8 years old?

A lack of trust in the ASD is the best reason to reject the offer for a second test. A good legal reason to reject the offer is that, in the vast majority of cases, the second test comes back with the same result as the first. And then in the hearing, where you hoped for justice, the second result is merely used against you.

Just like the betrayal up to that point, the second test is nothing more than a trap.

Our advice

Because in BC the so-called right to counsel has been made meaningless in roadside DUI investigations, we don’t get to talk to clients before they blow into the roadside devices. If we did, our advice would be never to take the second test.

There is no reason to believe the second test will be reliable if the first test was unreliable. And if you blow twice, the tribunal and the courts will merely conclude that there is twice as much evidence that you were over the limit, even if you were under but blew over.

We’re on your side

We have been defending these cases every single day since the law came into effect on September 20, 2010. Kyla Lee even wrote a textbook for lawyers on the subject and she was the first lawyer to have a case heard at the Supreme Court of Canada dealing with an IRP.

If you have a BC DUI, your right to a lawyer is suspended at the roadside but you have a right to have a lawyer represent you when you challenge the prohibition. Here at Acumen Law, we have successfully defended thousands of DUIs in BC (including from Nanaimo). Call us now.