Impaired Driving

We know all about Impaired Driving Law because we defend all types of drinking and driving cases for people around BC including the criminal offences of Driving Over .08 (80mg in 100ml), Impaired Driving, Care and Control, Refusal or Fail to Blow, and Drug Impaired Driving cases. We defend people from every corner of British Columbia. We are the most successful lawyers in BC defending Immediate Roadside Prohibitions (90-day IRP for blowing Fail or refusal/fail to blow).

About Criminal DUI in BC

Impaired Driving is a crime in British Columbia. The Criminal Offences related to driving unlawfully due to alcohol and drugs are sometimes collectively called DUI or DUIs.

If convicted in court of Driving Over .08, Impaired Driving or Refusal to Blow for even your first offence you get a criminal record and you must pay a substantial fine. There is a 1-year minimum driving prohibition if convicted, which may be longer depending on the decision of the court. After completing the driving suspension, you must complete the Responsible Driver Program (approximately $930) and then you’re facing interlock device installed in your vehicle (approx. $2000 per year) before you can get your licence back. You cannot get a conditional discharge for a criminal DUI in British Columbia. If convicted, it means a criminal record.

Defending your DUI

Driving lawyers Paul Doroshenko, Q.C. and Kyla Lee have been successfully defending criminal Impaired Driving (DUI), Over .08 and Refusal to Blow cases throughout British Columbia for nearly 2 decades. They know the defences that work and how to challenge police evidence in criminal driving cases.

See Also: 90-day Immediate Roadside Prohibitions
See Also: ADP Administrative Driving Prohibitions
See Also: Drinking & Driving Case Results
From Our Blog: Papers the Police Give You in Drinking/Driving Cases
From Our Blog: Court Papers in Drinking Driving Cases

Facts About Impaired Driving

Governments have struggled for decades to reduce the number of people who get behind the wheel after drinking too much alcohol or using intoxicating drugs. Federal law makes it a crime to operate or have care and control of a motor vehicle while the driver’s ability to drive is impaired by alcohol or a drug. The common criminal charges are impaired driving and driving with a blood alcohol concentration exceeding 80 milligrams in 100 milliliters of blood or refusing a lawful demand, normally for a breath or blood sample.

Impaired Operation

To prove their case the prosecution must show that the functional ability to operate a motor vehicle has been impaired. The test is impairment from slight to great, but the evidence required to prove impairment must establish the condition beyond a reasonable doubt. This may include physical symptoms such as slurred speech, bloodshot eyes, an odour of alcohol beverage, physical coordination problems as well as bad driving.

The police and witnesses normally testify concerning their observations of the suspected driver. A lawyer skilled in the art of cross examination can call into question the accuracy and the meaning of the observations. For example, the witnesses may have a poor recollection of surrounding events, poor notes or documents to support their observations. They may have misinterpreted their observations, mistaking illness for impairment, poor footwear for poor balance, inadequate driving skills for an inability to drive.

Driving Over 80 mg.

“Over .08” or having a blood/alcohol concentration in excess of 80 mg in 100 ml of blood is an offence normally proven with breath tests. The Criminal Code allows the police to make a formal demand to require a driver to provide samples of their breath for analysis into a Breathalyzer–style instrument. In BC the device is an Intox EC/IR II, which is an instrument that captures and tests a minuscule sample of subject’s breath as it flows through the internal manifold.

The proper procedures to operate the Intox EC/IR II are rigorous and rarely followed 100% correctly by the police.

In our Law Offices we have two Intox EC/IR, several BAC Datamaster breathalyzers, an Intoxilyzer 5000 as well as large collection of different types of Approved Screening Devices (ASD), the original Borkenstein Breathalyzers made by Smith and Wesson as well as the equipment to test and calibrate the most current breathalyzers in British Columbia.

Our DUI lawyers have studied the errors that occur when using these breathalyzers, and we know how to show when they have been used incorrectly.

Breath or Blood samples and the Charter of Rights and Freedoms

See Also: Your Rights

Breath or blood samples can only be obtained in a lawful process. What this means is that the police cannot take samples unless they follow rules in the Criminal Code. The rules are strict, sometimes contradictory and very difficult to follow correctly. It’s our job to know the rules better than the police. If the police take samples in violation of the rules, they violate the driver’s Charter right to be free from unreasonable search and seizure. Upon Application to the Court by a Criminal Lawyer, this will often lead to the case being thrown out.

Refusing a Breath Demand

With respect to impairment by alcohol the police may make demands for breath or blood samples during the course of their investigation. Failure without a lawful excuse to comply with a lawful demand is a criminal offence. A demand that is not lawful may be lawfully refused; although this is something typically determined in court and should not be considered in making a decision concerning whether to blow.

The danger of refusing to blow is that you may be convicted of refusing to provide a sample AND impaired driving. You cannot be convicted of impaired driving and over .08 for the same incident. If you are convicted of refusing to provide a breath sample, the minimum fine is $2000 plus a one-year driving prohibition and criminal record.

Care and Control

The phrase “care and control” is taken from the Criminal Code referring to the offence of having care and control of a motor vehicle while one’s ability to operate a motor vehicle is impaired by alcohol or a drug. Although it is considered a separate offense, you cannot be convicted of impaired driving and care and control while impaired from the same set of facts. When the police recommend a change of “care and control” it suggests that the evidence may be insufficient to prove that the suspect occupied the seat for purpose of putting the vehicle in motion.

Punishment

All alcohol and impaired driving related criminal convictions end with a criminal record, lengthy driving prohibition and significant fine. As of December 2018, the minimum punishment for a first offence of refusal is a criminal record, a $2000 fine and a 1-year absolute prohibition from driving. For the offence of driving over .08 the punishment depends on the purported blood-alcohol concentration.  On a second offence, a conviction will lead to at least 30 days in jail and at least 120 days jail for a third or more convictions.

If the offence leads to bodily harm to another person jail a jail sentence is nearly inevitable. In BC a third offence leads to a lifetime driving prohibition.

Roadside Breath Tests

See Also:  How the Roadside Breath Tester Works

The police in Canada have the authority to demand that a person provide a sample of breath into an Approved Screening Device (Roadside tester) when a police officer:

Reasonably suspects the person has alcohol in their body,
AND
The person has within the proceeding three hours operated or had care and control of a motor vehicle.

OR

The driver is lawfully stopped and the police officer has an ASD in their possession.

The demand must be made forthwith and the sample must be taken forthwith, meaning right away.

Blowing a “Fail” on a Roadside Tester

IT IS NOT A CRIME to fail on the Approved Screening Device (ASD), nor can the results be used to prove a person was over .08 or impaired.

In BC a Fail result will normally cause a police officer to issue you a 90-day Immediate Roadside Driving Prohibition (IRP). On rare occasions an officer may make a breath demand for further samples, usually taken at a police detachment as part of a criminal investigation.

The Problem with Roadside Samples to an ASD:

• See Also: The ASD – How it Works

Police Officer (Operator) Error

Police officers often incorrectly use the device due to poor training, failure to remember their training, inexperience or technical problems with the device in the field.

Mouth Alcohol

Less than 1 drop of alcohol in a person’s mouth can cause the device to register a reading in excess of 80 mg in 100ml (“Fail”). A burp, recent drinking or mouthwash very often will leave a person with a minuscule amount of alcohol in their mouth. Our studies have indicated that mouth alcohol can be present and cause a false fail more than 20 minutes after consumption or 10 minutes after a burp. International research has shown that retained mouth alcohol can cause a falsely elevated roadside screener reading as long as 40 minutes after the last consumption of alcohol. There is no police procedure to identify the presence of mouth alcohol from regurgitation and consequently this is viewed as significant source of false ASD results.

Faulty Device

ASD screeners, such as the Alco-Sensor FST which is used in BC, must be properly calibrated and maintained. If the device is used after the acceptable calibration period has expired, the police cannot rely on the results and the subsequent arrest and breath demand are likely unlawful. An ASD breathalyzer cannot be relied on to uphold an IRP if the device was used beyond the calibration period. ASDs can be damaged without the officer realizing it. See ASD problems on our blog.

Alcohol Fumes

Our own tests have produced results that would show that a person who has breathed in alcohol fumes may provide a false positive sample indicating alcohol in their body. Theoretically, kissing someone who has been drinking could cause the ASD to indicate that a sober person is impaired by alcohol. It follows that a designated driver with a car load of drinking friends may blow a false “fail” without ever having had a drink.

Retained Alcohol

An important scientific study demonstrated that within certain temperature ranges the roadside breathalyzers used in BC can retain the alcohol from the previous sample when the next person blows. In such case, later subjects can expect to provide samples with unreliable readings showing an elevated breath-alcohol level. The ASD will report a blank test of zero even when there is a small amount of alcohol in the device.

The Breathalyzer: Intox EC/IR II

In British Columbia police forces use the Intox EC/IR II breathalyzer instrument to collect and analyze breath samples to determine blood/alcohol levels. The Intox EC/IR II was purchased by police around the province to replace the aging but often more reliable BAC Datamaster C.

The “EC/IR” refers to an analysis performed by an electro-chemical fuel cell and an infrared spectrum diffusion process. The EC/IR designation is misleading because on the Canadian version of the Intox EC/IR II the operator of the instrument is never notified of the results of the infrared spectrum analysis. The electro chemical fuel cell in an Intox EC/IR II is the same very same sensor unit that was used in the old Alco-Sensor IV roadside screener which was replaced in British Columbia. We have revealed many flaws and technical problems with the fuel cell devices.

It just so happens that the Intox EC/IR II breath-testing instrument was the cheapest of all the breathalyzer-style devices considered by the RCMP. In our view, it was the wrong machine for the police to buy and we have had significant success challenging the breathalyzer tests to this machine.

Proof of the .08 Charge – Certificate of Qualified Technician

Along with a Promise to Appear or Appearance Notice, the police will normally serve a copy of a Certificate of Qualified Technician on anyone who they have tested and believe committed the offence of driving or operating with a blood-alcohol concentration in excess of 80 milligrams in 100 milliliters. The original document is normally presented in court as evidence of the readings obtained.

If you have been served a Certificate of Qualified Technician it is essential that you preserve the document in the condition you received it and give the document as soon as possible to your Criminal Lawyer.

Common and Uncommon Breathalyzer Errors

The Intox EC/IR II is more than simply electro-mechanical computational device. Accuracy is dependent on the proper and consistent functioning of a  an electrochemical fuel cell as well as imperative arithmetic calculations. The Intox EC/IR II relies on an electrochemical analysis of the molecules of alcohol to determine the breath-alcohol content. These breathalyzers may display error codes some of which are commonly known; others are highly unusual.

Invalid Sample

The presumption is that mouth alcohol has contaminated the sample. This error message has been known to appear in cases where there is no reason to believe that mouth alcohol has contaminated the sample.

Fuel Cell Timeout

The Intox EC/IR II has taken more than 50 seconds without having registered a breath-alcohol reading from activation of the micro-pump used to draw the sample to the fuel cell. The presumption is that the fuel cell is depleted and unreliable for the particular test and perhaps earlier recent tests.

Ambient Fail

During the purge cycle, the instrument has detected alcohol that theoretically should not be present. If Ambient Fail is reported before the test, the test should not be conducted and if conducted, cannot be considered reliable. If Ambient Fail is displayed after the test, it may be that left over alcohol has contaminated the purge cycle, although the source may be uncertain, and it may indicate a faulty internal valve.

Ethanol Baseline Unstable

The Intox EC/IR II uses two ranges of IR wavelength frequency to perform the delta IR test calculations. A third frequency range is used as a baseline. Fluctuations in the baseline may cause an inaccurate calculation to occur with the two primary test ranges.

Calibration Error

The instrument uses internal and external calibration tests to examine its own accuracy. If the internal calibration standard is outside 10% of its stored value, the instrument should not be used and readings obtained are not reliable.

CO2 Baseline Unstable

The infrared reading from the sample chamber in the Intox EC/IR II is outside the expected parameters. The feature to detect the presence of mouth alcohol may malfunction or may have been malfunctioning.

Not Calibrated

The instrument is no longer properly calibrated and should not be relied upon. Theoretically, calibration factors are properly maintained in the instrument’s memory. If the instrument detects a memory failure, it should display “Not Calibrated.”

Filter Error

The optical filters placed in the path of the infrared radiation source failed to register a change in voltage. The instrument should not be used as any readings are unreliable.

Interference Detected

If functioning properly, “Interference Detected” may be displayed if the instrument detects a substance other than alcohol interfering with the analysis. It does not provide an indication of what the substance might be.

Radio Interference

Radio interference from such devices as cell phones, hand held radios or pagers may interfere with the infrared source or detection at any point in the set up or testing procedure. If properly functioning, an internal component called the RF detection circuit should pick up the interference and the instrument will notify the operator.

Incomplete

This is a status message that appears if the breathalyzer has not obtained a sample in the allocated period. The operator is then prompted to tell the breathalyzer whether they believe the subject is intentionally not providing a sample.