By now, I’m sure you’ve heard of the changes to the law of drinking and driving in British Columbia. There has been a lot of controversy about the new laws, which will be a feature of discussion on this blog. In this post, I hope to outline a little bit about drinking and driving offences and their history in Canada.
What are the offences?
In British Columbia, the Motor Vehicle Act prevents anyone from operating a motor vehicle with an excess of 50mg of alcohol in 100mL of blood. Those who are caught with a blood alcohol level in excess of 0.05mg% will be served a 3, 7, or 30 day driving prohibition, dependent on their driving record. This prohibition is known as an Immediate Roadside Prohibition. Your vehicle will also be impounded, and you will be responsible for the towing and storage costs associated with this. You are also made to pay a fine and the cost of reinstating your license after your prohibition has ended.
Both the Criminal Code, in s.253, and the Motor Vehicle Act also prohibit driving in excess of 80mg%. If you are found in excess of this limit, you will receive an automatic 90-day prohibition from driving, as well as vehicle impoundment, a fine, and license reinstatement costs. You will also be required to enroll in a mandatory Driver’s Education Program and have an interlock device installed on your car. The cost of the course and interlock are yours to pay.
If you are charged criminally and convicted of impaired driving, over .08, or refusal, you must pay a minimum fine $1000 and you will receive a Criminal Record. You will be required to complete a minimum 1-year driving suspension, and the Responsible Driver Program. You will also be required to have an interlock device installed in your vehicle before you can get your driver’s license back.
How do they test for blood alcohol content?
In British Columbia, police officers can test your blood alcohol at the roadside by using what is known as an Approved Screening Device. Most of the police and RCMP detachments in British Columbia use the Alcosensor IV. The device works thus: alcohol from the sample of breath is oxidized becoming acetic acid, then generating an electrical current which is measured and interpreted by the internal software. The results are displayed on a LED readout.
The “Alco-Sensor IV DWF Screener” used in British Columbia indicates “Warn” between 60mg and 99mg in 100ml (up from 50mg as of November 2010) and “Fail” if over 100mg in 100ml. Below 59mg it displays the actual blood alcohol content.
If police are interested in pursuing criminal charges, they will arrest you after you provide a fail result. They will then make a demand for a sample into an “Approved Instrument”, better known as a BAC Datamaster. The basic operation is that the device passes infrared radiation through the sample of breath and then measures the decrease in radiation at the far end of the breath chamber. The concentration of alcohol is calculated by determining the decrease of infrared light as it passes through the sample. Then, using an extrapolating formula, the device calculates the blood/alcohol content.
I am the only Vancouver lawyer who owns a BAC Datamaster, as well as well as the Approved Screening Devices and an original Breathalyzer. I have studied the errors that occur when using the instruments, and I know how to show when they have been used incorrectly.
How accurate are the results?
The Approved Screening Device is not foolproof. The most disturbing problem with the device is that it is incapable of distinguishing between alcohol in the breath and alcohol in the mouth. Research has shown that alcohol can stay in your mouth for up to fifteen minutes after the time of your last drink. If there is alcohol in a person’s mouth when they blow into the device, it will cause the readings to become elevated. This can, and has, resulted in the conviction of innocent people who are well under the legal limits.
The Approved Screening Device must be properly calibrated and maintained on a regular basis. 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.
The Approved Screening Device was never intended to be used as evidence of one’s blood alcohol content in a criminal proceeding. However, after the law change in September, 2010, the results displayed on the Approved Screening Device are now used to impose severe punishment.
The Datamaster is similarly fallible. There is a very rigorous procedure related to the operation and maintenance of the Datamaster that is, in my experience, very rarely followed. Errors can occur in calibration, filtering, and other factors. The five-way valve contained inside the Datamaster is also subject to mechanical failure, which can cause an inaccurate reading.
Should I refuse to blow?
It is a criminal offence to refuse to provide a breath sample. In British Columbia, the punishment for refusal is the same as if you provided a sample and the result was a “fail”. If you are charged criminally, you face conviction for both impaired driving and refusal.
What should I do if I am charged?
If you are charged with Impaired Driving, Over .08, or Refusal, or you have received an Immediate Roadside Prohibition, you should contact a Vancouver Criminal Lawyer as soon as possible. We can be reached at 604-685-8889, or you can visit our website atwww.www.vancouvercriminallaw.com. The sooner you call, the sooner we can help you.