A week ago Kyla explained the big secret about defective breathalyzers. It generated a lot of discussion. Kyla was contacted by a investigative news outlet that would like to report on it, but she suffered an injury mid week, spent a little time in the hospital and is now recovering.
You can review the evidence here:
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
The discussion continued on our Acumen Law Facebook page. One person questioned what we did about the defective breathalyzers, suggesting that we just held on to this information for our own purposes.
Earlier the same day the Government announced that they had handed over responsibility of guarding the hen house to the fox. They were sure the fox would do the right thing.
That’s far from the truth. We explained that we went public in July 2014. I actually went on the news and the stack of documents was televised. Global reported on it. We felt that was sufficient to put everyone on notice. The question was what would they do about it. Undoubtedly the RCMP at some level were already aware of the problem. We hoped that the higher ups would come out and say that they would investigate this, they were concerned and they would report back. That would have inspired confidence in the police in BC.
The RCMP response
Instead they said that they had confidence in the review process.
We thought that this was utter garbage because the review process would never reveal this sort of problem. The police are the holders of these secret records and they never hand them over to people for an IRP review. Moreover, you have only a couple of weeks to collect the records necessary to mount your defence. In order to identify the problem we had to examine thousands of documents. It wasn’t until we’d reviewed tens of thousands that we could say that we were 100% certain that these breathalyzers were defective. Good luck accomplishing this as part of the review process for an IRP.
The police knew this. They knew the review process was no review at all for problems like this.
And even if you have this information, who would make sense of it for you? Aside from myself and Kyla, at the time there was nobody except perhaps a handful of police officers who could decipher the documents and spot the pattern.
We needed the full brainpower of our office at the time to sort this out. It would have been ridiculous to count on the “review process” to fix the problem. Proof is the fact that it went on for years until we identified the problem and now a year later the review process has done nothing for the thousands of people who blew into defective breathalyzers over the years.
The response of the Superintendent
The official BC Government response was that they trust the police to do the right thing.
Earlier the same day the Government announced that they had handed over responsibility of guarding the hen house to the fox. They were sure the fox would do the right thing.
Was that sufficient notice?
We thought that announcing the problem on TV was sufficient notice to the Government and the police to pull the defective breathalyzers and start an investigation. They certainly knew about the problem at that point. We didn’t expect them to do the right thing, however.
Our history with the Immediate Roadside Prohibition law
If you go back and read our blog you’ll see a long series of fundamental failures of Government and police to do the right thing. From our perspective we view the implementation of the IRP scheme as a colossal failure marked by a conspiratorial coverup. Instead of doing the right thing, it appears to us that the police and Government will stop at nothing to hide evidence that their law is a failure. Some higher ranking cops have told us that the biggest fear of the people at the top is that the IRP scheme will implode because of things such as defective breathalyzers.
Looking back, the big problems with the scheme were things that we identified over the last 5 years. Each time the Government strategy was to downplay the problem, manipulate the media and cover up the damage. And they’ve been fairly successful in that regard.
We’re proud of what we’ve discovered but very worried about what we might have missed. It’s also a little unsettling that we seem to be the only lawyers digging at this level.
The panic response
We noticed that these ASDs in the defective range were pulled from service for a couple of weeks. A number of officers approached us at traffic court and told us that they were uncomfortable using many of the ASDs for some time. They’d seen strange readings that indicated a malfunction but they were told to shut up. When they saw the news report they made the individual decision not to use ASDs from this serial number range.
Then a few weeks later the word went out that officers had to keep using the defective devices. We heard that they were concerned that, if they pulled them from service, it might be viewed as an admission of fault!
Imagine if you were a drug company and you determined that your new headache drug caused every 5th person to have a stroke. Maybe you kept selling the drug because you were concerned about the upcoming IPO. Then when the scandal hit the news, instead of pulling the drug you just kept selling it wherever you could because if you stopped selling the drug it might be viewed as a public recognition that you were selling a dangerous product.
The police in BC put the defective breathalyzers back in service.
They knew what was going on
So did we hold onto this information for selfish ends? Nope. But we weren’t stupid either. We knew that a cover-up was the most likely scenario. We’d seen it before. Still, we were shocked that they started using the defective breathalyzers again.
They did something else too. They placed orders for replacement breathalyzers.
Very quickly we saw new Alco-Sensor IV DWFs put in service. They got these only a few weeks later. And for a while they only used the defective breathalyzers for one of the two breath tests.
This was a cover-your-ass step.
Then police forces all around BC ordered the replacement model breathalyzer, the Alco-Sensor FST. The plan was to roll out the replacements and have it all done in October, but they were months behind and so it wasn’t until January 2015 that the defective ASDs were replaced by the FST.
By the way, we sued
On our own accord, at our own expense and with no fanfare we sued the RCMP to stop them from using the defective breathalyzers. The matter is still in court. Its a novel lawsuit because we were seeking simply to stop the RCMP from damaging people in the future. We ourselves had suffered no damage, so we weren’t seeking compensation for us. Any single person might be able to sue, but that would be for something that already happened.
We were proactively suing to protect the public from the police.
This matter is still in front of the court. We believe that if we did not sue, the defective breathalyzers would still be in service. The Government is defending our suit and wants to make us pay for their costs if they win. It’s a significant risk for us.
Who?
Can you count on the review process? Can you count on the RCMP?
Nope. It turns out you can count on lawyers, and in particular you can count on us. We’re the reason that the defective breathalyzers were replaced. If it wasn’t for us, and if we didn’t force the Government and the police, defective breathalyzers would still be out there right now.
We are proud of ourselves for how we handled this, no matter what. But we note that it shouldn’t be this way. When impaired driving cases went to court, mischief of this sort would have been ferreted out early on. As it is, it took us years to collect the evidence because it was held by someone else, in offices spread across the province and without any real organization.
Our Government and police forces let us down. Nobody can be proud of that.