Because we defend so many Immediate Roadside Prohibitions for drinking and driving, we see a lot of police mistakes. We also get a lot of calls from clients who have received DUI charges asking about mistakes police have made on their paperwork.
Some mistakes made by police will have absolutely no impact on the outcome, while others will have major impacts. This blog post will help to discuss the top 5 mistakes that police make in Immediate Roadside Prohibition DUI cases.
Determining what the top 5 mistakes made by police are, involves an assessment of both how commonly the police make these mistakes, and the impact these mistakes will have on your case.
Below is a list of what we believe are the top 5 most common mistakes police make in an Immediate Roadside Prohibition.
Not properly swearing the report to the Superintendent
Back in 2014, the BC Court of Appeal ruled that an Immediate Roadside Prohibition report has to be sworn by a police officer. This triggered a legislative change that made it mandatory for the officer to swear the report and mandatory for the Superintendent to revoke the prohibition in the absence of a sworn report.
Generally speaking, in law, if there is a signature of an officer and a signature of a commissioner for taking oaths in BC, a report is considered to be properly sworn. The problem is, it’s never that simple.
Certain issues can arise in identifying mistakes in what appears to otherwise be a properly sworn report.
Identifying the person who is swearing the report is very important. In some circumstances, mistakes in recording the name of the officer may lead to a determination that a report is not properly sworn in.
This is a very technical issue and one that requires a nuanced understanding of the rules around swearing a report. We have won numerous cases on improperly sworn reports and so we know what mistakes work and which ones do not.
We do find that the police not properly swearing a report is one of the biggest mistakes that they make in an Immediate Roadside Prohibition case.
Failing to properly follow the steps to get a reliable test
There are numerous factors that can affect whether an Approved Screening Device breathalyzer properly registers a Warn or a Fail reading. The breathalyzer needs to be operated in certain conditions and certain steps must be followed before a test is provided to ensure that the result is going to be reliable.
For example, if a driver admits to drinking alcohol within the preceding 15 minutes, the officer is trained to delay the test to make sure that the sample is reliable. However, one of the biggest mistakes we see police make is with respect to delaying the test.
Our office argued a case in 2014, wherein a driver admitted to consuming alcohol less than 15 minutes before the test. Even though the driver admitted to consumption, the police did not conduct the appropriate waiting period.
It should be black and white, but like many things in the law, it is not. Not all waiting periods less than fifteen minutes will be wrong and not all waiting periods that are fifteen minutes will be correct.
We have found that even since that case, police continue to rely on bad practices in many instances and fail to conduct the appropriate waiting period. Knowing whether this will be a defence requires a trained legal eye.
There are also numerous substances that police are trained about that can interfere with the test. These substances require a wait for other reasons. But officers don’t seem to realize this in many cases, and the waiting periods are not conducted. Different
substances and different circumstances have different waiting periods, so understanding the science around all these waiting periods and why they are necessary is important.
Failing to use a properly calibrated breathalyzer
There are certain steps that the calibrator must follow to complete the calibration check.
Although the calibrators often follow these steps, they may not always be properly documented on the calibration records.
Similarly, the police may not actually use properly calibrated breathalyzers when conducting the investigation. Knowing what to look for and what mistakes on a calibration record can lead to revocation of the prohibition, is highly technical and very difficult to spot.
We have experience pointing out problems in calibration records. In one circumstance, we used our specialized knowledge in the identification of calibration problems to identify a flaw that resulted in the revocation of over 100 Immediate Roadside Prohibitions in a single month.
At the end of the day, it is up to the police to use a properly calibrated breathalyzer and if they fail, there may be a defence in your Immediate Roadside Prohibition DUI case.
Failing to adequately document evidence in refusal to blow cases
When a person is alleged to have refused or failed to provide a sample, and they have tried to blow, but couldn’t, the information that the police get at the roadside related to the person’s efforts to provide a sample could be crucial in determining the issues in the prohibition.
The status messages that appear on the breathalyzer tell the officer important information on how the device is working.
In many refusal to blow cases, police do not document the actual testing process in very much detail.
Instead, they use vague descriptions of behaviour or lists of status messages without providing further information. In these circumstances, the courts have found that insufficient information would exist to confirm that somebody actually failed or refused to
comply with the demand.
This also applies in cases where people are said to have outright refused to blow into the breathalyzer.
The police have to document details about how a refusal took place, and what was said both to trigger it and in response to it. but again, police often just rely on the driver saying ‘I refuse’ and leave it at that.
But this is often not enough evidence to make out a strong case against you.
Failing to document information about demands made at the roadside
Because an Immediate Roadside Prohibition proceeds on the basis of a Breathalyzer demand, there’s often obscurity surrounding what type of demand was made.
There are two different types of Breathalyzer demands, each with its own sets of rules and legal requirements.
The failure of the police to properly document the demand and the types of demands that are made leads to the conclusion of a situation where the adjudicator has to assume certain information without a factual foundation for those assumptions.
Courts have been critical about drawing assumptions that are not grounded in evidence.
The result of this has been that many Immediate Roadside Prohibitions have been revoked because of an absence of a clear evidentiary record related to the type of demand that was made.
Now if you didn’t understand any of this don’t worry, all of these defences that have been outlined in this blog post are highly technical.
We don’t expect someone reading this post to understand how to use this information to defend themselves. We want you to know that there are numerous mistakes that can be made in an investigation and that disputing your prohibition is not useless simply
because you blew a fail or weren’t able to provide a sample.
Even though the burden of proof is on the driver, you still have a right to a fair hearing and to quality evidence from the police.
Contact our office if you’ve received an Immediate Roadside Prohibition and we can help you understand whether the police have committed any of these top 5 errors or any other errors in your case that may lead to a successful outcome.
What if the police officer wrote the wrong dates when documenting?