If you received an Immediate Roadside Prohibition for Fail and you’re wondering how it could happen bearing in mind how little you had to drink, the answer may be that you had some alcohol in your mouth.
One of the main problems with Fail IRPs is that none of the roadside breathalyzers can differentiate alcohol that is expelled from your lungs from alcohol that may be in your mouth. The simple fact is that if you have any alcohol in your mouth the reading will be elevated and not accurately reflect your actual blood-alcohol content.
Approved Screening Devices (ASDs) used at the roadside by the police in BC do not provide a reading of the driver’s actual blood-alcohol content. They were not designed for this purpose. If they are working properly (a big “if”) then they should read Fail if the subject’s blood alcohol content is over 100 mg of alcohol in in 100 ml of blood. The device does not tell the operator if the reading was 300 or 101. It simply says Fail.
The Fail reading is what the police rely on to issue a 90-day Immediate Roadside Prohibition for Fail. But does that mean that you were over 100 mgs (or even 80mgs)? Not necessarily. As stated, the device will add alcohol from your breath to any alcohol you have in your mouth. Your blood alcohol content may be 45 mg in 100 ml of blood, but due to mouth alcohol the ASD may register Fail.
Why might you have mouth alcohol? From drinking! The police and the Government which upholds the prohibitions on review rely on the belief that any alcohol in your mouth will have dissipated 15 minutes after your last drink. This is wrong. The premise arises from studies conducted on behalf of the police where alcohol was introduced to the mouth and then spit out by a test subject who had nothing to drink. In other words, there was no underlying alcohol in their system. What they concluded was that after 20 minutes, and probably after 15 minutes, enough alcohol would be gone that the test subject wouldn’t blow Fail.
Two essential mistakes have been regularly made in these studies. First, the tests were not taken on people who had actually been drinking, so there was no consideration of underlying alcohol. And second, the subjects were required to blow at intervals during the 20 minute period. The simple act of blowing into a breathalyzer multiple times will cause mouth alcohol to dissipate.
The studies generated the results that the designers wanted. Now, when you are pulled over by the police you are sometimes asked when you had your last drink. This question is deliberately vague — not when you finished it or if you had any other alcohol since. And you are entitled to lie. But the police and the Government will rely on it to uphold your IRP even though the question lacks precision. They want to you to have your IRP whether or not you are innocent. If the police don’t know when you finished your last drink or forget to ask we have noticed that they will record that the last drink was 3 hours earlier. It’s a convenient lie.
Interestingly, more recent research shows that the 15 minute period provides no assurance that the samples will not be contaminated by mouth alcohol. The National Institute of Forensic Toxicology in Oslo found that mouth alcohol may be present in normal circumstances more than 30 minutes after the last drink and in certain circumstances more than 90 minutes after. A study conducted in BC found some subjects with significant mouth alcohol after 15 minutes.
This fact in itself should be enough for anyone connected to the scheme to stop and see that it is fatally flawed. We can’t understand how anyone who knows even a little about how these devices work can say with a straight face that it is appropriate to punish people on the basis of an ASD sample. Of course, you can always pretend that ASD samples are reliable if that’s your job.
In rare circumstances the OSMV will lift 90-day IRPs for people who run a mouth-alcohol defence. The case presented by the applicant must be overwhelming to succeed. It will usually require a toxicologist’s report, medical evidence, statements from nearly everyone you were in contact with in the previous 12 hours, and that may be just the start. If you can prove beyond almost any doubt that mouth alcohol was the cause of the false Fail, then your IRP might be lifted on review.
Unfortunately, because innocence is not normally sufficient, it is extremely rare that an Immediate Roadside Prohibition for Fail is revoked on the basis of the driver being innocent.