If we didn’t have the ability to communicate with language, humans would probably be struggling along, like all of the other animals of this world, making grunting sounds and living in trees. Thank goodness for language. And then there’s the ability to record our thoughts and ideas and pass this information to later generations in written form.
There are significant consequences to this. One is that most of us come to terms with the fact that our profound insights aren’t really profound because someone living on the edge of the Mediterranean thought the same thing 2500 years ago. Another is that, if you’re paying attention to what has been studied and written about before, you can avoid making the same mistakes people made in the past.
In 1927 the first scholarly article appeared describing the problem of mouth alcohol and breath tests. Scientists in the beginning days of breath testing realized pretty quickly that even the slightest amount of alcohol anywhere in the subject’s mouth would cause an elevated reading. In the first article identifying the problem the authors warned anyone relying on breath tests that the tests may be falsely elevated due to alcohol in the mouth, regardless of how it got there. Simply put, early breathalyzers (and our currents roadside ASDs) can’t distinguish alcohol from the lungs from alcohol in the mouth.
In the years that followed police adopted breath testing in DUI investigations throughout Canada and the US. Although it was well-known in the scientific community that breath tests have this often-fatal flaw, the police were slow to recognize the problem. It wasn’t until lawyers started identifying the problem and raising mouth alcohol as a defence in court that precautions were introduced.
What’s wrong with the police?
The fact that mouth-alcohol will contaminate breath samples is an enormous problem. Why did police forces ignore it?
The prevailing attitude of the police, even today, is that if you have alcohol in your mouth you’re guilty enough. Moreover, many officers have decided the guilt or innocence of the driver long before they blow. As well, taking a proper breath test takes time and effort, and humans usually try to avoid things that are difficult or time consuming.
In any event, police officers often deny reality when testifying in court. We see it all the time. So it doesn’t surprise us a bit that the police were slow to adopt better procedures to ensure reliable tests. But eventually even police officers agreed that it was wrong to punish innocent people.
For well over a decade, right up until the IRP scheme came into effect, we had a system for taking breath tests in DUI cases that almost eliminated the problem of mouth-alcohol contamination of breath tests. The big Approved Instrument breathalyzers in police detachments can usually detect if mouth-alcohol is present. Then there are protocols that reduce the likelihood of mouth-alcohol contamination, such as 15-20 minute observation periods, and samples not more than 20mg apart. But now all of that is gone, at least in BC.
Lost DUI knowledge of the ancients
Certainly one of the biggest problem with the IRP scheme is the unreliable testing procedures. Innocent people with a tiny bit of alcohol in their mouth, even from sources as innocuous as soy sauce, can be issued a 90-day IRP based on unreliable testing. The procedures and the machines do nothing to address the problem of mouth alcohol. The police have some window-dressing protocols that seem to be optional for many officers concerning asking about the last drink. But instead of the onus being on the police to ensure reliable tests, the onus is on the driver to establish at the lopsided hearing that the results are inaccurate.
Yes – good luck with that. If you’re making a mouth-alcohol argument, chances are that the tribunal will simply reject your evidence by saying you’re not credible (i.e. you’re a liar).
So with the IRP scheme what we’ve seen is devolution in action. The knowledge once gained about the dangers of bad breath tests has been forgotten and shunted aside. By lobbying the government, the police and lobby groups managed to introduce unreliable breath testing while at the same time taking the cases from court and putting it in a government office.
Sadly, the people responsible for the IRP scheme didn’t pay attention to what was studied and written about before, and so they are making many of the same mistakes people made in the past.
What we are witnessing is devolution. Some reactionary people who are either unaware of those smart things written down by scientists 85 years ago or who are indifferent to the principles of fairness are now the ones overseeing the DUI laws in BC.
Some smart research can now be considered as lost DUI knowledge of the ancients. People a generation before ours knew that roadside breath testing, as we do it in BC, is inherently unreliable. But that DUI knowledge is lost to the people responsible for the IRP scheme.
Our system of breath testing and our system of justice are devolving before our very eyes.