Should You Blow Twice?

Each province has its own laws regarding drinking and driving investigations. In BC, when the police demand a breath test right there are the roadside into a hand-held approved screening device, the results will trigger options for the police that impacts the way things will play out for the driver. In many circumstances, when a “Fail” reading is obtained, the officer may inform the driver that they have a right to a second breath test. But is it a good idea to blow twice? In other words, is it better or worse after the fact if you provide two breath samples at the roadside?

This is a conundrum. Much of the problem arises with the way the law works in DUI cases in BC. 

In British Columbia if the police demand a driver provide a breath sample into an approved screener at the roadside and the result is “Fail” officers are trained to notify the driver of their Charter rights. The reason for this is the “Fail” indicates that it’s likely the person has a blood-alcohol concentration over the criminal legal limit.

The Charter rights are firstly that the driver is being detained for further investigation and secondly that they have a right to a lawyer. The police are also required to make a demand to the person that they come with them to a location for the purposes of obtaining more breath samples into more sophisticated breathalyzer. The intention is to collect evidence that can be used in court to show they were over the criminal legal limit in the two hour period after driving. Most importantly, of course, they must tell you about your right to silence. You are entitled not to say another word. Not to answer another question.   

So picture this, first you are stopped and you blow into a little breathalyzer and you blow “Fail.” Then the police officer says you’re detained or under arrest, you have a right to a lawyer and you must blow again so they can collect evidence to use against you in court. At this point typically you’re handcuffed and sitting in the back of a police car. And if you’re smart, you don’t say another thing except that you want to call a lawyer.

The switcheroo

Here’s where it gets tricky. In most cases the police are NOT going to keep you or take you anywhere for further samples. AFTER the officer tells you these things, they are supposed to check your history on their computer system. If you don’t appear to be a person with a history of drunk driving, the officer is likely to discontinue the criminal investigation.

That’s right. After telling you that you’re facing a criminal charge (jail and a criminal record – all of those things) the officer is likely to conclude that instead they will issue you a 90-day Immediate Roadside Prohibition (an IRP). Then the officer will start telling you all sorts of other things.

Your right to talk to a lawyer? Gone. The police are not going to get your lawyer on the line. Reliable breath samples into a sophisticated breathalyzer? Nope. That’s gone too.

Of course, the police don’t explain any of this. All the officer will say is that now you’re going to be given a 90-day driving prohibition. And they try to chat people up about providing another breath sample to one of their roadside screening devices.

Police techniques that could trick you

After notifying you of all your criminal rights in a criminal case, the police take away your rights and tell you that you have a new right, which is to blow again into another roadside screener. If the police are issuing an IRP for “Fail,” they must notify you that you have the option to blow again. This time, they say, if the reading is lower, they will punish you with the lesser punishment.

Careful – it’s a trap

Of course, you still have your right to silence, so how can you respond? If the police put this to you as a question, how can you answer without giving up your right to silence?

That’s right. When they tell you this, you can say nothing. Don’t move or answer. They won’t know what to do.

But what if you decide to blow again? Often police officers encourage people to blow again. How often do the police do things to help you in these circumstances? The answer is they don’t. It’s true that the lower test will govern the punishment at the roadside, but the way alcohol is absorbed and exhaled in your breath, chances are that the reading will be “Fail” again and in fact that is almost always the case. So should you blow the second time?

Should I blow twice?

The answer is almost always No. Often the first sample will be questionable because the police haven’t observed the driver long enough to rule out test contamination. For example, if you burp alcohol into your mouth just before you were stopped, the sample would be defective due to mouth alcohol. However, if you blow again, it is much less likely that the second sample will be contaminated by mouth alcohol. In this scenario, the second sample simply undermines the mouth-alcohol defence you may have had if you blew once.

Very rarely a person blows a lower reading the second time. It’s so rare that we think you shouldn’t blow twice. Moreover, if you think one police breathalyzer was wrong, why would you trust a second?

Is it all over if you blew twice?

The defences to an IRP are different if you blow twice than if you blow once and your lawyer will have a different approach. For example, your second test may not be taken in a manner consistent with proper procedure which is a denial of the right to a second test. And in many cases the sample problems that make the first test unreliable may also make the second test unreliable. Generally speaking, however, the second test is unlikely to help you. It usually ends up in two “Fail” results which will have the officers high-fiving each other because now they think they have sewn up the case against you.

Back to your rights

The IRP scheme starts with a violation of your rights because you don’t get to call a lawyer before blowing despite the fact that the results will be used against you. The courts have said this is okay because drunk driving is bad and therefore your rights can be put aside. But you still have your right to silence. We suggest that you use it.

If you are pulled over, you must provide your license and confirm your name and address. After that, we suggest you maintain your right to silence. Look at the police officer. Listen to what they say. Don’t answer. Silence CAN’T be used against you.

If the officer tells you that you have a right to a lawyer, say you want to call your lawyer. After that, no matter what they say, no matter what they tell you, stay silent.

If they tell you that you have a right to blow again, you do not need to answer. They are trying to collect evidence to use in their IRP investigation. You have a right to silence. Don’t help them and don’t say a thing.

And when you get home, call us.