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Wrongly punished for drunk driving

Wrongly punished for drunk driving

Gastroesophageal reflux disease

Wrongful convictions make for great television dramas. Until about 20 years ago, there seemed to be a significant public appetite to improve the justice system to reduce the risk of wrongful punishment and wrongful convictions. But things changed and we see that our federal government is hell-bent on ensuring people are wrongly punished for drunk driving. You only need to look at Bill C-46 for proof of that.

The impudence and sheer in-your-face stupid conceit of C-46 could not have come about if we as a society valued the concept of not punishing the innocent. But despite the television dramas, the public at large appears to have given up on protecting the innocent from punishment. Case in point: the IRP scheme.

In our last blog post on the topic, we explained that with the Immediate Roadside Prohibition scheme the government under pressure from the police and MADD abandoned the quality assurance methods for alcohol breath testing. The two key methods to ensure reliable breath tests are 1) ensuring no alcohol is consumed in the 15 minutes before the test and 2) to ensure via an observation period that a burp, belch or regurgitation has not occurred because any of these actions will cause alcohol from the stomach to make it to the mouth.

With roadside tests as part of the IRP scheme there is no observation period, therefore the results are scientifically unreliable. They are not reliable enough to be used for scientific study. They are not reliable enough to be relied on for punishment. Yet in BC that is exactly what the law does because the government is willing to see people wrongly punished for drunk driving.

How many people in BC are wrongly punished for drunk driving?

The government undertook no studies, no research and made no inquiry to determine how many people could possibly be wrongly punished for drunk driving by eliminating 1/2 of the quality assurance component of alcohol breath testing. In our view, this is simply negligent. They should be ashamed of themselves.

If you think it’s okay for 1/3 of people punished to be innocent, you’re nuts.

Sadly, although we turned our mind to it and made noise about it both here on our blog and in the media, we also failed to crack that egg. But then it dawned on us: why not find out how many people in British Columbia suffer from chronic burping? How many people in BC suffer heartburn or acid reflux?

Yes, this should have been a no-brainer. Go to the pharmacy and walk down the aisle that contains medication for stomach issues. Medication to deal with GERD (Gastroesophageal reflux disease) is a multi-billion dollar industry in North America. Obviously many people suffer this disorder. Why not identify how many? Why not determine how many innocent people are wrongly punished for drunk driving under the IRP scheme by identifying the percentage of the population who suffer GERD?

We did what the government didn’t do

Back in the spring, we hired an independent research company to find out where we stand as far as public opinion is concerned. When the IRP scheme came out and we were clearly the most vocal opponents, we gained some enemies. We don’t know who they all are, but we’ve been threatened and subjected to anonymous harassment. Our sense was that the tables had turned – that we were admired for our accomplishments and that even our detractors (the level-headed ones) had come to see we had been correct. So we hired to conduct an independent, scientifically valid survey. The results confirmed what we expected – Acumen Law is running at the top of the field as far as respect for our firm by the public in BC.

This was the first time we had ever conducted such research. It got us thinking that we could have a similar survey conducted to identify how many GERD sufferers are found in the BC population. It’s what the government should have done back in 2010 before implementing the IRP scheme. They didn’t do it. We did.

Some background

Back in the spring of 2010, the BC Government introduced IRP legislation. In those days Acumen Law Corporation was just me, a secretary and Kyla Lee who was a particularly bright and hard-working student. At the time, a number of lawyers got together to finance the challenge to the IRP scheme. There was a lot of discussion about how we should go about it. We broke down tasks and aside from contributing money, I was tasked with preparing the Charter argument on section 10(b). We also discussed whether there was any polling or other research that could be done. We had ideas but none of them seemed worthwhile.

In the end, Kyla wrote the 10(b) argument, the court took that analysis and, using section 8, struck down the first version of the IRP legislation. None of us had really expected that. It was an innovative approach. For Kyla and me, it caused us to think more about the “reasonableness” of a reasonable search and seizure. Kyla developed her approach to disputing IRPs with this in mind and I believe it is a significant reason why she is better at IRP and DUI defence than anyone I have ever known.

Part of a reasonable search is that it is conducted in a reasonable manner. Is it reasonable to conduct a search (make people blow into a breathalyzer) when you know that eliminating 1/2 of the quality assurance will mean many innocent people will be wrongly punished for drunk driving? That was something we failed to address head-on in the constitutional challenges to the IRP law.

The research we did

We contacted to conduct a survey to determine the percentage of people in BC who experience GERD and would therefore provide inaccurate readings on roadside breathalyzers (ASDs). Like our first survey, we told them what we were curious about and we let them go ahead and do their thing. The survey was conducted in August 2018. We’ve kept it secret because we wanted to use it for the benefit of our clients, but eventually, we knew we would make it public, so here it is.

Pie chart showing percentage of British Columbians who have experienced acid reflux*

What were the results? In BC 38 per cent of the population suffer gastroesophageal reflux disease either occasionally (27 per cent) or frequently (11 per cent). Bearing in mind that alcohol is considered the primary trigger of acid reflux one can reasonably say that a third of the BC population is at risk of providing falsely elevated readings on an ASD roadside. In other words, about 1/3 of the IRPs issued have been issued in circumstances where the tests are unreliable.

How many are too many?

We think one person wrongly punished for drunk driving is one too many. The people behind MADD seem to be mostly concerned about fundraising, but if asked the honest answer may be that innocence or guilt is irrelevant for their organization. Many police officers who actually conduct IRP investigations have significant concerns. The higher-ups who don’t do the boots-on-the-ground work just assume the system is safe and when we revealed problems they run around to cover their asses (see Port Moody calibration scandal). And the government? They’re oblivious to the damage they cause.

Why we’re going public

We’re revealing this now for a number of reasons. The full hit of Bill C-46 is coming our way in a few weeks. The ICBC CounterAttack program is now underway for the 2018 Christmas season. Alberta is unfolding IRP-style legislation and Manitoba has introduced a full-on copy of the BC law.

To Alberta and Manitoba I say, if you think it’s okay for 1/3 of people punished to be innocent, you’re nuts.

To the people of BC I say, be careful out there. If you get an IRP, give us a call. We’ve got the knowledge and we do the research to properly defend our clients. We hate this system and we’ll do our best to ensure you’re not wrongly punished for drunk driving.

*Results are based on an online study conducted from August 2 to August 5, 2018, among 800 adults in British Columbia. The data has been statistically weighted according to Canadian census figures for age, gender and region in British Columbia. The margin of error – which measures sample variability — is +/- 3.5 percentage points, nineteen times out of twenty.

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  • Robert Pestes
    Reply December 3, 2018 at 10:55 am

    Interesting study with real world applications in law. My concern is that under administrative law, the bar of reasonable doubt doesn’t really apply, only the balance of probabilities does. On that standard, there is a greater than 50% chance that an accused doesn’t suffer from a burp issue, and administrative law isn’t concerned with reasonable doubt.
    Your thoughts?

    • Paul Doroshenko
      Reply December 11, 2018 at 9:56 pm

      That’s the problem. They eliminated a major procedural protection and replaced it with a review. Then they made the review a balance of probabilities and the onus on the applicant to satisfy the tribunal.
      It’s a fundamental flaw of the system.

  • Doug Bain
    Reply December 3, 2018 at 11:15 am

    Last winter I was stopped in a roadcheck. I had just finished a double scotch that I’d been nursing for the previous hour.
    I mentioned that I ‘may’ have mouth alcohol…. the CST said no problem. She wrote down the time and we waited fifteen minutes.
    I felt pretty good but wasn’t sure what the reading would reveal. After waiting the 15 minutes I provided my sample….. reading was zero point zero (0.0).
    On my way…… no issue with doing my part keeping the roads safe.

    • Paul Doroshenko
      Reply December 26, 2018 at 10:46 pm

      Glad to hear it worked for you.
      Of course, that the ASD worked is lucky but not a given. People with no alcohol in their body have blown Fail.

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