A Second Breathalyzer Test – a double-edged sword

When you are pulled over and subject to an Immediate Roadside Prohibition investigation, you have the right to a second breathalyzer test at the roadside. This test is required to be conducted on a different device, and the lower of the two readings will prevail. The second test is sold to drivers by police as the mechanism by which they are entitled to challenge the results of the first test, and that they have nothing to lose by taking this. Well, that’s only sometimes true. The second breathalyzer test is often a double-edged sword.
If your situation cannot get worse by taking a second test, why would you refuse to take it?
This is logic employed by the RoadSafetyBC tribunal often in cases where drivers only provide one sample. I have received decisions from the Superintendent confirming an Immediate Roadside Prohibition case where I had argued the test was unreliable. My client provided evidence to say they were surprised at the result, but did not take a second test. The adjudicator confirmed the prohibition — on more than one occasion — because it “made no sense” that a driver would refuse a second test when their situation could not get worse, and they did not trust the reliability of the first reading.

Well, if that’s the standard that’s applied then the second test may as well be mandatory, like it is in criminal investigations on the breathalyzer at the police detachment. But it isn’t mandatory. It’s a right. And in our justice system you are entitled to exercise your rights or not exercise your rights. You’re not presumed guilty simply because you ask for or hire a lawyer, so why would you be presumed guilty simply because you didn’t take a second test when it was offered to you?

The second test can make your situation worse
In reality, a second test can make your situation worse. Take, for example, the case of a driver who provides a sample that is unreliable due to contamination by recent mouthwash use. Yes, this really happened. She requested a second test, and the second test was conducted seventeen minutes after the first test. Mouthwash could not have affected the readings. She argued that she was entitled to two reliable tests, but the BC Supreme Court disagreed, saying that the legislation only requires one reliable test result.

Effectively, the driver lost her defence because she took a second test. Even though she couldn’t reasonably have been expected to know that her first test result was faulty.

Then there’s the situation of the driver whose breathalyzer appeared to be malfunctioning before the first “Fail” reading. He took a second test, on a different machine, and the second device began to malfunction in the same manner. His 90-Day Prohibition for DUI was upheld on review. The BC Supreme Court determined that it was reasonable for the adjudicator to find the results were reliable, despite the fact that the officer’s evidence indicated a malfunction, because it was so unlikely that two machines would malfunction in exactly the same way, and produce two identical unreliable results.

We have taken on the appeal that decision.

If either of those drivers had not requested a second test, then they would have had solid defences in their cases. But the request for a second test, in both situations, actually made their situation worse.

There are other examples of cases where the request to take a second test has resulted in the elimination of a defence, as opposed to the creation of one. In those circumstances, the officer might behave in a totally unfair manner by relying on the first test result when he should reasonably have known it was not reliable. The Government’s position is that the officer is allowed to get away with this, because if the driver requests the second test they effectively do so at their own peril. That’s why they’re appealing a perfectly rational decision about this exact issue.

The BC Government Doesn’t Care if the Second Test Process is Fair
It seems the Government does not want the second test to be fair to you. For instance, you have to request the second test immediately but the police do not have to provide it immediately. Even though the Supreme Court of Canada was told the officer offering the second test had better be in the position to do it right away. Do you notice anything similar between the Guirola case and the SCC webcast? Look closer. You’ll see it.

So the government is not concerned that your second test is actually for your benefit. They do not want the second test to be fair to drives. Even though their press release announcing the changes following the Sivia decision said that they were designed to “enhance fairness and strengthen public confidence in the process.”

The same News Release where they announced that also said that the police would be required to advise drivers of the fact that the lower reading prevails on a second test. But in reality, that was never written into the legislation. The Government does not interpret the legislation to require police to advise drivers of this, and the Superintendent has repeatedly taken the position that the only information that needs to be conveyed about the second test is that a driver can take one. That’s it.

But the second test can make your situation better
The second test can also improve your odds of success. The obvious reason for this is that you’re twice as likely to have a device that has a defect or malfunction or calibration error. If you only take one test, you’re stuck with the results of that test and if the calibration checks out and there was no mouth alcohol contamination, you’ve got an uphill battle at proving your innocence. There is also the possibility that the officer will mistakenly (or intentionally) conduct your second test on the same machine. I once saw this happen in a case where the officer didn’t feel like waiting for a second device to arrive.

Of course, sometimes adjudicators will just assume a second machine was used even when the best evidence shows that a second one was not used.

And then there are the cases where the driver requests the second test and it is not provided, or the device is malfunctioning and a reading is not obtained. Then the driver can argue that their right to a second test was violated, which may result in the prohibition being revoked.

I’ve seen cases where drivers have requested the second test and have gotten a lower reading. Yes, it happens. So there’s the obvious benefit and what was intended by the legislature when writing the law. And I’ve also had cases where the second test results in a higher reading, which just goes to show that the lower one was probably not reliable.

The double-edged sword
And herein lies the problem. Often, you have everything to gain by taking a second test. But you also can put yourself in a situation where you have everything to lose. And there is no way that at the roadside a driver can be apprised of all the information necessary to make an informed decision about whether a second test will truly be to their benefit.

My best advice to anyone dealing with an Immediate Roadside Prohibition is to have a lawyer handle it for you. An experienced and knowledgeable DUI impaired driving lawyer can find the defences that will benefit you regardless of whether you took one test, two tests, or refused to blow. You don’t want to miss something that could work to your advantage because you do not have the same knowledge, skills, and training as someone who deals with these cases every day.

2 thoughts on “A Second Breathalyzer Test – a double-edged sword”

  1. I think the laws need to be even stiffer and get the REAL drunk drivers off the road. They are still out there and make our roads dangerous. Giving them opportunities and second chances doesn’t do anyone good!

    1. Hi Toni,
      Getting the “real drunk drivers” off the road is a positive goal. But it should not be done at the cost of justice for those who are not committing an offence. The second test does give drivers an opportunity to prove they were inaccurately tested. A two-blow system has been something we’ve had for a long time. It isn’t a “second chance” in the way you’re thinking of it at all.

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