Last summer, a little over a year ago, we revealed to the media a problem with breathalyzers in British Columbia. We had determined that there were a lot of defective breathalyzers in use in BC.
For the first time ever, available to the public, is Paul’s affidavit about the batch of defective breathalyzers.
This was information that we had gathered over several years prior to our announcement, through Freedom of Information requests to police and RCMP for breathalyzer calibration and maintenance records. Early on under the Immediate Roadside Prohibition scheme, we had suspected that there was a particular problem with some of the BC breathalyzers used by police. We decided to request records from every RCMP detachment and review them once and for all.
And that’s how we discovered the big secret about defective breathalyzers. We’ve wanted for some time to tell the story behind the story and actually show everyone the evidence. Now it’s finally the time.
Backgrounder
Some background is required.
When the IRP scheme came out, Paul Doroshenko began making Freedom of Information disclosure requests to various police departments particularly in the Lower Mainland at first and then further afield.
His particular concern was the roadside breathalyzers (Approved Screening Devices / “ASD”) used in BC. He had identified problems with a different generation of breathalyzer a few years earlier. He owned and has used ASDs and he was worried about using them in the manner they are used by the police in the IRP scheme.
Paul identified problems with maintenance and calibration and some of the systems used by the police. He determined that there was no substantial oversight and that ASDs were malfunctioning at an alarming rate. He took some of the more concerning issues to the media.
Paul reviewed hundreds of ASD maintenance documents. He looked for patterns. It was complex and difficult work because the documents were often haphazardly collected for disclosure and the record keeping at the detachments was very poor. The documents were difficult to decipher. He spent hours and hours pouring over documents.
Paul learned that in the summer of 2010 police departments all around BC received new Alco-Sensor IV DWF ASDs. Then he started to notice a pattern with this batch. Then he became even more concerned.
The next step
Paul determined that there was a problem with this batch. What started as a suspicion developed into solid proof as we reviewed more documents. We knew that the problem was huge. The issue was how we would deal with it.
We decided to obtain through Ottawa all of the calibration and maintenance records from the RCMP over a specific period. We needed concrete evidence. Although we were satisfied ourselves, we needed to show without a doubt that these devices had a flaw. After about six months the disclosure started to come in.
Paul reviewed tens of thousands of pages of calibration records, maintenance receipts, memos and emails over a multi-year period. The project became a full-time job and we all started to pitch in. And we concluded that there was a manufacturing defect with the breathalyzer machines used in British Columbia for the purposes of the Immediate Roadside Prohibition regime. Some RCMP officers who were paying attention had also identified the issue. But nothing appeared to have been done to solve the problem.
When the evidence was overwhelming we revealed this to the media in July 2014. Our hope was that it would result in a change of procedure. We thought that the police would pull the defective ASDs from service, replace them, and contact the Superintendent of Motor Vehicles to ensure that Immediate Roadside Prohibitions issued on these devices would be retroactively cancelled.
Nothing of the sort happened.
Government gobbledygook
What began instead was a typical Government blame-shifting exercise. The police said that they trust the Superintendent of Motor Vehicles to deal with the issue of unreliable devices. The Superintendent of Motor Vehicles said he trusted the police to use reliable devices. And the Premier came out on camera, looking like she had been without sleep for a few weeks. She uttered something about confidence in the system.
It was a complete brush off. Nobody would take responsibility for the problem. Still, for a few weeks, the police stopped using the defective devices. We felt like we had won. We were happy to see that the system was slightly more fair to drivers. We didn’t know what the future held, but at least they had stopped using ASDs from the defective batch.
From a win to a loss for the BC driving public
But then, everything slipped back to normal. The media storm died out, and we realized the outcry was insufficient to force the police to change. Nobody really cared to change anything. The defective devices were back on the road, and the Government seemed as though they could care less.
We had to pick up the slack
Realizing that nothing was going to change until we took matters into our own hands, we did just that.
We decided that we needed to assemble a package of the material to show the devices were defective and send it in on every single IRP hearing where the officers relied on a defective device.
In total, we came up with four hundred pages of records to prove our point. The next problem was how to explain it to the adjudicators at the RoadSafetyBC tribunal. With only 30 minutes for the hearing, it seemed impossible to go through every piece of evidence, every time, and discuss its meaning for the adjudicator.
We needed an expert’s opinion
Hiring experts can be costly. It can be time-consuming. Experts could not go through the massive amount of disclosure we had reviewed to come to the same conclusion we did, without it costing tens of thousands of dollars. And while we have been funding legal challenges to the IRP scheme from our own pockets for years, our resources are finite.
Still, we set out to find someone who could interpret the records, explain the documents and provide an Affidavit expressing an expert opinion.
I’m connected to a bunch of international DUI groups. I started looking for an expert. I quickly determined that I could not find anyone who understood the records and the functioning of the ASDs as well as Paul. One expert told us that nobody knows the Alco-Sensor IV as well as Paul, particularly with respect to the problems with this defective batch. Who else has reviewed 20-40,000 pages of ASD maintenance records in BC?
Ultimately Paul agreed that it was in the best interest of the matter that he provide an Affidavit expressing his expert opinion, interpreting the records, and explaining the problem. We could then send this written evidence in for each IRP hearing and save the precious thirty minutes for the other arguments that arose. And really, who better than Paul Doroshenko to take on the expert role? We doubt that there is anyone in the province who has come even close to reviewing as many ASD records as he has.
Paul’s affidavit is now online
We’ve been alluding to this material on our blog for a long time. The implications are hard to fathom.
Now for the first time ever, available to the public, is Paul’s affidavit about the batch of defective breathalyzers. It’s actually grown to five affidavits. As he collected more material, Paul prepared further affidavits to drive home the point. We encourage you to review these documents. You’ll see what we’re talking about.
The files are big. Here are the links:
Doroshenko Affidavit 1 Part A
Doroshenko Affidavit 1 Part B
Doroshenko Affidavit 1 Part C
Doroshenko Affidavit 2 & 3
Doroshenko Affidavit 4
Doroshenko Affidavit 5 Part A
Doroshenko Affidavit 5 Part B
Using Paul’s affidavit
We prepared the Affidavit, sent it to RoadSafetyBC for hearings, and waited for decisions.
And nothing happened. We got no decisions.
The Illusion of a Review
Instead, what we received were a series of “Notice of Extension” letters, telling us that the adjudicator was unable to render a decision and would provide a decision when they could. No date. No timeline. This was a problem. I explained why in a blog post on the biggest failing of the IRP scheme.
Meanwhile, the IRP remains on our clients’ driving records.
Months passed. Now, for some, a year has passed. No decisions.
Lawyers who never give up
Okay. That’s not entirely true. We did receive a few decisions. And the ones we did receive made it clear to us that the Superintendent wasn’t taking the issue as seriously as they had told reporters they did. The decisions instead seemed reverse-engineered to reject Paul’s expert opinion and to reject the evidence of a problem.
It’s hard to have confidence in a tribunal that appears to be crafting ways to reject evidence, instead of finding ways to deal with an obvious concern.
The first few decisions trickled in and we responded right away. Strategy One: Call Paul Not An Expert. As soon as we could see that this was the tactic of the tribunal, we spent an entire weekend in the office researching the law on expert evidence and crafting written submissions to send in on all files with outstanding decisions explaining why Paul is, in fact, an expert in law.
We’ve said before: we are lawyers who never give up. We believe in the argument, we believe in the issue, and we believe in the importance of using reliable machines to conduct breath tests and determine punishment.
Time marched on, and no decisions were rendered. We figured we had stumped them with our expert submissions. And then something else happened.
Bill 15 and Defective Breathalyzers
Here’s a riddle: What’s easier than dealing with the problem of an expert providing evidence of defective breathalyzers?
Changing the law so you don’t have to deal with it.
If you’ve read our summary of the nefariousness of Bill 15 and the changes to the Motor Vehicle Act, you’ll know that the Government has changed the law. It’s not in force and effect yet, but it’s passed. It’s only a matter of time.
And when the Government does enact it, the Superintendent can make regulations limiting the evidence from applicants (bye bye expert evidence). And limiting the number of submissions (bye bye four hundred pages of evidence). And raising the Superintendent himself to the level of an expert (he’s right you’re wrong).
Yes, it’s easier for the Government to just amend the law wholesale than grapple with the fact that they screwed up by trying to create a law that relies on defective breath testing equipment. And especially easier to change the law than to make right their mistake.
Our suspicion is that the impetus behind these significant changes to the law is to prevent defence lawyers like us from making arguments that result in prohibitions being revoked. Through some perverse reasoning process, they’ve concluded that stopping the lawyers will stop drinking and driving.
They’re wrong. And no one is stopping us.