History of ASD Approved Screening Devices
In 1975 the Criminal Code was amended to allow officers to compel a suspected impaired driver to undergo a roadside screening test. The concern was that police officers often lacked the ability to identify DUI and DWI drivers. At the time studies showed that in the early morning hours the driver of 1 in 8 vehicles was DWI.
One of the first devices approved by Parliament to screen DUI and DWI cases was the A.L.E.R.T. Alcohol Level Revaluation Road Tester. It was commonly called the Roadside Breath Tester. The device was calibrated to show a red light if the subject blew over 100mg in 100ml, amber if between 50mg and 99mg in 100ml and green if 49mg and below.
Ultimately the device was discredited mainly due to the possibility of interference by substances other than alcohol and technological advances that made it obsolete.
The A.L.E.R.T. was believed to be accurate five minutes after the last alcohol consumed. We now know that a false fail is very likely, even if the last drink was 20 minutes earlier. It is likely, therefore, that many people were wrongfully arrested on the evidence of an A.L.E.R.T. “Fail.”
In September 2010 the British Columbia Government enacted new laws to make the ASD the decisive test at the roadside. The new laws introduced lengthy driving prohibitions with significant punishment on the basis of an ASD test result. This approach was controversial. In the first version of the legislation these new prohibitions were referred to as “Automatic Roadside Prohibition” or “ARP.” The BC Government realized that this name revealed that they had created an unfair and unlawful legal scheme and later changed the name to “Immediate Roadside Prohibition” or “IRP.” ASDs were never introduced to be used in such a manner. The ASD was promoted to an evidence gathering device used to inflict punishment.Particularly disconcerting was the frailty of the evidence, the unreliability of the devices and the fact that the ASDs used in British Columbia do not retain calibration or breath test results in memory or document form.
On November 30, 2011, the BC Supreme Court found that the 90-day Immediate Roadside Prohibition legislation violates the Charter of Rights. The Police in BC reverted to the previous method of investigating possible impaired drivers when they have provided a sample indicating “Fail” at the roadside, including detaining the individual for more accurate breath tests obtained at a police detachment.
On June 15, 2012, changes to the Motor Vehicle Act came into effect after the BC Liberals pushed legislation through in the final days of the spring legislative session. The changes brought back the entire Immediate Roadside Prohibition scheme.
In the summer of 2014 the lawyers at Acumen Law revealed a major problem with certain Alco-Sensor IV ASDs used in BC. Litigation was started by Acumen in BC Supreme Court and other venues. The Police in BC then replaced the Alco-Sensor IVs with the newer Alco-Sensor FST.
Innocent people receive IRPs in British Columbia with no true opportunity to challenge the evidence because the police and the government only provide the disclosure they want to provide and ASDs may provide false readings for a number of reasons.