Whenever a driver blows a “Warn” or “Fail” on an approved screening device, they have the right to a second roadside analysis. The police officer must take the lower of the two readings. Denying a driver this right is sufficient grounds to overturn an immediate roadside prohibition.
Right to a second roadside analysis
Section 215.42 of the Motor Vehicle Act states:
- “If an analysis of the breath of a person by means of an approved screening device under section 215.41 (3.1) registers a warn or a fail,
- the person has a right to forthwith request and be provided with a second analysis, and
- a peace officer must inform the person of that right before the peace officer serves on the person a notice of driving prohibition.
So not only do drivers have a right to a second roadside analysis, but also police officers must inform them of this right before serving an IRP.
The second analysis must be performed with a different approved screening device than the one used in the first test. Most officers carry two ASDs for this very reason. However, if they don’t have one, the officer and driver will have to wait for another officer to bring one to their location.
Once the second analysis is carried out, the lower of the two results is the one that’s taken.
Are you allowed to wait between analyses?
If you blow a “Warn” or “Fail” on an ASD you may want to wait before exercising your right to a second roadside analysis. Perhaps a second reading will be lower if you wait a while for it to dissipate. Unfortunately, the la states the test has to be carried out “forthwith” meaning now. Most officers, however, will wait around 15 minutes after the first test before proceeding with the second.
I was denied this right, do I have a defence?
If an officer refuses a request for a second ASD test or if they fail to inform a driver of their right to a second roadside analysis, there is sufficient grounds to overturn an IRP. Take, for example, this case.
A driver, who was issued a 90-day IRP, appealed on the grounds she was not properly informed of her right to a second roadside analysis. The police officer said she read the driver her right to a second test on a different ASD but she refused, stating “what’s the point”. The driver, however, said the officer told her she could take a second test but she would use the initial “Fail” reading regardless. The driver testified she replied “what’s the point” in the belief a second analysis would not change the outcome.
The appeal was upheld by a Superintendent of Motor Vehicles adjudicator so the woman requested a judicial review of the adjudicator’s decision at BC Supreme Court.
The judge found the adjudicator accepted the police officer’s side of the story without properly analysing the credibility of the driver’s account.
The judge overturned the decision, stating: “I find that by assuming the facts necessary to uphold the IRP where evidence was lacking, the Adjudicator’s general decision-making process with regard to credibility and other relevant evidence was unfairly tainted.”
If you have received an Immediate Roadside Prohibition, you only have seven days to file an appeal. Contact us now to speak to one of Acumen Law’s impaired driving defence lawyers. 604-685-8889.