We were disappointed to see a decision in the BC Supreme Court in June that held police do not have to offer the full details of the rights available to someone who blew their first fail into an Approved Screening Device. In BC, if police demand a breath sample on suspicion of drug or alcohol impairment and you blow a “warn” or “fail,” you have a right to provide another breath sample, into a different breathalyzer. Police are required to accept the lower result of the two.
Unfortunately, police are only required to tell you that you can provide another breath sample. They can choose to and are allowed to leave out the part about using a second device.
It is impossible to know whether the ASD being used is accurately measuring their breath alcohol content.
Why is using second device a big deal?
Approved Screening Devices used by police to test drivers’ breath samples are required to be calibrated monthly to identify any faulty devices. When we say faulty, we mean devices that can provide dramatically wrong readings. Internal documents from the RCMP themselves suggest ASDs have an “error factor” when measuring of +/- .01 blood alcohol content, even when functioning properly. It’s big enough of a difference that someone who blew a “warn” or “fail” result may get a significantly lower reading the second time, on a different breathalyzer.
To someone pulled over by a police officer for a roadside sample, it is impossible to know whether the ASD being used is accurately measuring their breath alcohol content. This is why the right to a second breath sample, on a different breathalyzer, is protected by the law. Unfortunately, you need to be aware of this right to ensure that an officer actually provides you with a second ASD.
Why are officers not required to inform me of my rights?
It’s the way the law is written, unfortunately. In the BC Supreme Court decision made in June, a 90-day Immediate Roadside Prohibition was upheld, despite evidence the police officer used the same breathalyzer for both breath samples. Our client maintains that the breathalyzer used was within his view the entire time. However, he only found out later that he has the right to a second test on a different breathalyzer.
Upon judicial review, the court found that the law “does not state that the officer must advise the driver of the fact that the second analysis must be by a different ASD.” In our view, the way the law is written is unfair. If the intention is to allow a driver being checked for sobriety to provide an accurate reading of their breath alcohol content, it does not make sense why police would be allowed to leave out important information about the second breath sample.
Confusingly, the law says police must advise the driver of their right to be provided with a second breath sample. It just leaves out the part about the second breathalyzer.
Here’s what S. 215.5(1)(b) of the Motor Vehicle Act says (emphasis added):
(b) in respect of a 90-day driving prohibition resulting from a sample of breath for analysis by means of an approved screening device and the approved screening device registering a fail,
(i) the person was advised of his or her right to forthwith request and be provided with a second analysis under section 215.42 (1),
(ii) the second analysis, if the person requested a second analysis, was provided by the peace officer and was performed with a different approved screening device than was used in the first analysis and the notice of driving prohibition was served on the person on the basis of the lower analysis result,
Plain as day, the requirement is that an officer must use a different ASD to conduct the second analysis, but only needs to inform the driver that a second test can take place. If a driver was unaware that a different breathalyzer must be used for the second breath test and a breath sample was given anyways, it can be challenging to dispute the officer’s version of events after the fact.
Know your rights. Make sure you are given a different ASD for your second breath test. If you believe your rights have been violated in the process of providing a breath sample, give us a call at 604-685-8889.
Motor vehicle act right? For 215 referred to above you mention criminal code
I don’t see Criminal Code in this blog post.
what if I registered a warn , for the first time in 5 years, and the police officer (after showing me warn) wrote fail on the ticket and I got the 90 day suspension. Subsequently leading to a 1 month impound, 90 day license suspension, and I’m foreseeing the RDP and smartstart device. I want the legal reasons of request to provide me the results of that test. The police officer lied on the ticket, this will ruin my life,
I was giving a 90 day fail and realized I was impaired so never took my second reading.
I was issued two tickets one for failing and one for refusing.
Is this allowed? I’m confused how I can be fined for failing and be fined for refusal all at the same time?
What if the second test was done on the same breathalyzer as the first?
When I got my DUI, the police gave me one field test breathalyzer reading, took me to the station finger printed me, then let me go. not throwing me into the drunk tank. also not giving me a second test at the station, with the bigger police station breathalyzer. Am I able to fight this in court? this is my second dui and they are 2 years apart. I got legal aid helping me though I need a second opinion.
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