Use Immunity in Criminal Investigations
In a criminal investigation when you’re pulled over and questioned about drinking, those answers are not held against you in court. They are subject to a doctrine known as “use immunity.” This effectively means that as long as you say something before you’ve been given the opportunity to speak to counsel and in circumstances where your participation is effectively compelled, like a roadblock or traffic stop, the statements that you make cannot be used against you in court. Nothing you say up until the point that you get legal advice can be used as evidence.
Exceptions in the Roadside Prohibition Law
But when it comes to the 90-day IRP law, this is not so. The use immunity doctrine is a procedural protection that applies in a criminal prosecution only. The BC Court of Appeal has ruled numerous times that the procedural protections that apply in a criminal case do not apply in a 90-day DUI case. The result of this, unfortunately, is that people end up making statements in the roadside prohibition investigation that are used to their detriment.
Why Do People Say Things to Police That Are Inaccurate?
While it might be reasonable to suggest that somebody who lies to the police knowing full well that what they’re saying is untruthful or inaccurate should have that statement held against them, there’s a difference between people who are outright lying to police and people who may be saying something to the police that is inaccurate for other reasons.
Take, for example, a very common situation that we see often when people are pulled over by police and questioned about drinking. Police officers ask people when they had their last drink. There’s no specific wording of the question that’s required. Police aren’t trained to ask the question in a certain way. And individuals who are asked this question also don’t know the implications of the question. This is understandable because the question often serves two purposes. On the one hand, police are asking people when they had their last drink in order to determine whether they have grounds to suspect that alcohol is in their body based on what they say they drank and when.
So, of course, most people don’t think to be specific down to the minute or second of when they had their last drink. This is not at the forefront of most people’s minds. If you’re stopped at a roadblock and asked about drinking, the logical inference that you’re going to draw is that the police want to know whether you’re driving impaired. And so your answer to that question might not be exactly when you had your last drink. You might say “an hour ago” when in fact it was 20 minutes or an hour and a half earlier.
People provide estimates. That’s the normal way that people talk.
Police Have All the Power and Knowledge
The other reason police ask this question and which is not explained to drivers at the roadside is they asked the question to determine whether there’s anything known as mouth alcohol.
Mouth alcohol is residual alcohol that remains in your mouth from the consumption of an alcoholic beverage or a product containing alcohol within the preceding fifteen minutes.
Generally speaking, the accepted science and the police training is that there needs to be a 15-minute dissipation period for residual mouth alcohol. Unfortunately, this is inconsistent with Canadian law, which requires that the approved screening device test — the roadside breathalyzer test — be administered immediately. The tradeoff is that police officers are trained, but not legally required, to ask about the time of the last drink. But you are not required legally to answer questions.
When police officers ask individuals when they had their last drink, they’re often trying to suss out whether or not there is residual mouth alcohol contamination. That’s a great question to ask but it doesn’t communicate to a lay person unfamiliar with the impacts of residual mouth alcohol what information the police are actually after. So, if you say “15 minutes ago” and you actually had your last drink less than fifteen minutes earlier, most people wouldn’t consider that to be an untruthful response. Nobody is timing it with a stopwatch.
Think about how we talk to one another. If you tell a friend “I’ll be there in 15 minutes” and you get there in 22 minutes, no reasonable person is going to think that you’re a liar. You just had a margin of error in your estimate.
Common Sense vs. Adjudicators’ Perspective
This common sense approach is not something that is strictly applied in the context of dealing with the immediate roadside prohibition tribunal run by RoadSafetyBC. Your conversations are not viewed that way. Your answer, if it is not accurate down to the second, is almost exclusively held against you.
This is why it is the only reasonable advice that we can give to people when they ask “What should I say at a police roadblock? What should I say if I’m asked about drinking?” is to remain silent. Because if you say anything even with an honest margin of error, even when you believe you’re telling the truth but your answer is not specifically accurate, that untruthfulness can and will be held against you.
Fear and Trauma – Legitimate Reasons to be Untruthful
But it’s not just people’s naivety with respect to the consequences of residual mouth alcohol that lead to people making false statements. There are all sorts of other circumstances in which people might give a false statement to the police.
Not everyone answers untruthfully due to a desire to be dishonest. The court cases that have looked at relying on an untruthful statement in the context of an immediate roadside prohibition case have generally looked at people who are “admitted liars.” That is, people who admit that they told an untruthful statement where they did it to gain some sort of advantage, or get away with detection, or to not have to be subjected to a breath test.
But there are also “admitted liars” who lie for legitimate reasons. Just because you’re an admitted liar doesn’t make you the type of person who is always going to lie.
Yet the reasoning endorsed by the BC Court of Appeal and that is almost exclusively applied by adjudicators at the Superintendent of Motor Vehicles Office is this: if you say something untrue to the police, regardless of the reason, you are a liar who cannot be trusted. The inference is that you will say anything to protect yourself, and say anything to get out of the consequences of the 90-day DUI prohibition. The adjudicators will conclude that you are lying in your evidence to the tribunal even when that evidence may be corroborated by other witnesses.
To illustrate this, we can give you some examples of some troubling reasoning that we’ve seen in a variety of cases that we’ve argued. We have unfortunately had to represent individuals who have been assaulted in the past by police officers, or people who were physically or sexually assaulted by police officers. These individuals have very legitimate fear and anxiety or PTSD when interacting with police. When those people lie to police it is not because they’re trying to get some sort of an advantage, but instead because it is a subconscious defence mechanism to not trust the police.
However, adjudicators have historically not accepted that explanation.
Their response to this is to point to their own invocations of common-sense propositions, such as the fact that it was not the officer who pulled the driver over who committed the earlier assault. Or to claim that the officer was not behaving aggressively or in an oppressive manner, so fear or anxiety were not justified.
They also find reasons to doubt the truthfulness of the very claim of a history of abuse, such as the absence of medical evidence, gruesome details, or corroboration. Or, if the driver does not explain to the adjudicator’s satisfaction exactly how the PTSD affected them at the time, it is rejected as being untruthful.
It is a no-win proposition because no matter what you say, it is held against you if you are dishonest. And even if you are slightly inaccurate, it’s held against you.
Plain Misunderstanding
We’ve had lots of cases where clients legitimately misunderstood vague questions put to them by police officers.
The question, “when did you have your last drink?” might be far more meaningful to a police officer. They know they’re asking about mouth alcohol. But that’s not how an ordinary person understands it. Many people commonly interpret these questions as directed at a time period over which they were drinking, or when they started drinking.
Drivers often give an answer that is somewhat vague, but not intentionally. They believe that they are providing more information than what the officer is after.
When someone says, for example, “I had a couple beers in the last two hours,” they’re not saying they finished their last drink two hours ago. They’re just saying in the last two hours, they consumed two or three beers.
That is an honest answer.
But to RoadSafetyBC adjudicators reviewing the facts, that is dishonesty. Being vague in response to the police questions will be held against you. Not knowing that an officer wants to know the last time alcohol passed your lisp and not specifically providing that can and is held against people.
It feels like this type of reasoning neglects common sense, but it has been upheld in court decisions.
Courts have repeatedly said on judicial review that an adjudicator’s decision must be reasonable. An adjudicator must look at the evidence in a way that analyzes its consistency internally, its consistency with other evidence found to be reliable, and its consistency with common sense and ordinary human experience.
But adjudicators by their very nature are scrutinizing the conduct after the fact, with the benefit of knowledge, training, and expertise that comes with the role of being an expert adjudicator. They are then being asked to put themselves in the shoes of a person who has none of this training. So common sense is often not assessed from the common sense of the common man, but instead the common sense of an adjudicator with the benefits of the power imbalance that exists at roadside.
Unfortunately, what we’ve seen is that even intentionally honest answers that are inaccurate are interpreted as dishonest answers.
Disputes in Evidence
And even cases where people provide an honest answer, but where it is incorrectly recorded in the police evidence, can be problematic. Any time there is a dispute in the evidence an adjudicator has to decide who to believe. There is always a risk a person will be disbelieved.
This is again why the best and only advice we can give to people who are asked about their alcohol consumption roadside is to remain silent. The best advice is: “lawyer told me not to talk to you.” Because unfortunately, like with any conversation, sometimes your statements can be misheard, misunderstood, misconstrued, or misreported in the police evidence. And that sets you up for a credibility contest with a police officer where you bear the burden of proof.
While it is true that no baseline reliability is meant to be ascribed to the police evidence, we have seen reasons that suggest that because the police officer has no motive to fabricate, or because the police officer is a trained investigator who’s role is to rule out mouth alcohol, it wouldn’t make sense for the officer not to be paying close attention to what you said and recording your responses accurately.
And because the burden of proof is on you, this means that if the evidence is a “tie,” the police version prevails.
While some of the reasoning that we’ve described is obviously reasoning that could be challenged on judicial review, we’ve also discussed in this blog before the shortcomings with the judicial review process. Judicial review itself is an incomplete remedy. Adjudicators are afforded extreme deference by the courts to their findings of fact. And in order to challenge an adjudicator’s conclusion as unreasonable, not only do you have to show that the adjudicator made an error in their assessment of evidence, but also that the error was central to the conclusion reached. Often, adjudicators will give more than one reason to reject your credibility, not just singling out your statement roadside. Then on judicial review, the government’s argument often is that the error was not central to the adjudicator’s conclusion because there were other reasons advanced for rejecting credibility. And if even one of those reasons for rejecting your evidence survives the judicial review hurdle, the decision itself is upheld.
Remain Silent
This is why it is so important to not answer questions at the roadside. Because the one consistent principle the law continues to recognize is that your silence in response to police questioning can never be used against you.
You can never be found to lack credibility for remaining silent.
So if you are pulled over by police and questioned about drinking, even if you’re innocent, it is never in your best interests to answer the police questions about drinking with anything other than silence.
Remember: Lawyer Told Me Not to Talk to You.