In British Columbia, people can be punished on the basis of a single result on a roadside breathalyzer test. The problem with this method of punishment is that it eliminates the need for all of the procedural safeguards that are otherwise followed in a criminal investigation to ensure that breathalyzer test produce a reliable reading.
This means that many breathalyzer tests that are conducted do not produce reliable results, and this is because factors that can affect the reliability of the test are not identified or noticed by police officers.
In many cases police officers are not even aware of these factors, and whether or not they can affect a breathalyzer test, which can be hugely problematic. Innocent people can be convicted or wrongly punished because police training simply does not identify all the issues that can impact a breathalyzer result.
Many of the factors that affect breathalyzer tests are things that are completely innocuous. For example, we have recently demonstrated on TikTok that breathalyzer tests can be falsely elevated through the consumption of soya sauce on sushi, Ponzu sauce, or when eating Japanese food. Breathalyzer tests can produce false readings as a result of recent use of mouthwash, or breath spray, or even as a result of putting on hand sanitizer. You don’t even need to put the hand sanitizer in your mouth for it to have an impact on the breathalyzer test!
When police officers conduct these breathalyzer tests, they’re not trained to ask about every possible factor under the sun that could affect the test. In fact, police are legally required to read the demand and administer the test immediately. The law in Canada states that unless the police officer has a reason to believe that there has been recent consumption, or some sort of factor that can affect the reliability of a breath test result, they are capable of proceeding with the test without making inquiries as to whether or not a driver has burped, belched, vomited, had any recent consumption, or taken anything by mouth in the minutes before being pulled over.
And of course all these factors can also occur in the early stages of the investigation, while the driver may not have been observed, or under observation by the police officer continuously.
This is a problematic flaw in the process, but it’s also logical that police officers should not have to rule out everything that could possibly impact a breath test. After all, there are so many factors that can impact a breath test. It’s not always possible for an officer to go through a laundry list of every single item, particularly when new things that can affect breath tests are being discovered each and every day.
But the result of this, of course, is that many people are punished wrongly on the basis of a breath test result that is not accurate due to the contributions of other factors that may have an impact on the test.
Even oral care products like Orajel have been shown to produce false readings on breathalyzers.
Oftentimes when we point out these issues that can affect a breath test result, people respond by alleging that police officers will do a repeat test after 15 or 20 minutes. This is not only an inaccurate statement of the law, but a misunderstanding of how the law operates.
So I’d like to break it down.
In Canada, if a police officer is proceeding with a criminal investigation, they cannot rely on the result of a roadside breathalyzer test for any purpose other than as grounds for an arrest and demand for breathalyzer samples at the police station.
Breathalyzer samples that are taken at the police station are typically done after a 15 minute face-to-face and uninterrupted observation period. And, typically, in the vast majority of cases, there are two samples that are taken a minimum of 15 minutes apart.
But this is not a legal requirement.
Many people seem to be under the mistaken impression that taking a breathalyzer sample 15 minutes apart from another breathalyzer sample is a required procedure. However, it is only required to the extent that it gives the Crown prosecutors the ability to rely on the sample results, as reported by the instrument, without the need to establish what would otherwise be required in evidence to prove the reliability of the reading. This means they don’t have to call a Qualified Technician to explain how the test were conducted. This means they don’t have to call an expert to say a reading taken at 3:20 PM is evidence of what somebody’s blood alcohol concentration was at the time of driving, by using certain calculations to back extrapolate the reading to within two hours of when the driving occurred.
And while ultimately those presumptions are relied on in the vast majority of criminal cases, not every case is a criminal case.
In British Columbia, the vast majority of impaired driving investigations proceed under BC’s immediate roadside prohibition legislation. This operates under the BC Motor Vehicle Act. Whether you get an Immediate Roadside Prohibition is completely independent of whether or not you are Investigated under the Criminal Code, and none of the Criminal Code procedures that exist are imported into the legislation as requirements.
So in British Columbia, you can be, and people almost on a daily basis are, punished on the basis of a single test result taken on a roadside breathalyzer. Remember too that under Canadian law, and this applies equally to the BC Motor Vehicle Act, the breathalyzer test result is required to be provided immediately. Police officers are legally required to demand the sample immediately. And while they are entitled to delay the test if they know about something that can affect the breath test result, as we know from the discussion earlier in this blog post, they don’t always know, and they’re not required to take steps to identify these factors. And so identifying false readings on a breath test is something that usually can only be done with the benefit of hindsight, an interview with a client, or specific targeted questions, based on the specialized knowledge that an impaired driving lawyer has.
In addition, even in a criminal investigation, it isn’t always going to be the case that the police get two test results that are 20 minutes apart. I have seen cases where police officers are able – for a variety of reasons – only to collect one sample reading.
And although the Crown prosecutors can no longer then rely on the benefit of any presumptions in the Criminal Code, they are still permitted to use that one reading. They can then hire an expert witness to testify in court about the reading, and call the Qualified Technician who operated the breathalyzer at the police station to testify about taking the reading and the result of the reading. All this evidence can then be relied on in order to prove that the driver was over the limit. And then to secure a conviction.
This may not happen in the vast majority of cases, but it is possible. This means that it’s not always the case that, even when facing criminal charges, a person is going to have their innocence sorted out by the procedure followed at the police station.
Another factor that a lot of people seem to overlook is that it is possible to have your first breath test after failing a roadside breathalyzer less than 20 minutes later. Again this is not going to be the vast majority of cases. But it will be some.
This is because there are breathalyzer buses, which allow the police to take a sample right then and there.
In circumstances where police officers are conducting roadblock operations, on some occasions, they will have a breathalyzer bus parked outside the roadblock. Once somebody fails a roadside breathalyzer test, they’re arrested and taken onto the breathalyzer bus to provide a sample. If they declined the opportunity to speak to a lawyer (which nobody ever should do, incidentally) then they are going to be taken for a breathalyzer test immediately. And again, while police are trained to conduct a 15 minute face-to-face uninterrupted observation before a first sample is taken, the law from the Supreme Court of Canada is that this is not required.
There are many jurisdictions in Canada where a 15 minute uninterrupted, face-to-face observation period is not conducted before the first sample is provided. Most notably this seems to occur in Alberta, where the practice is, generally, not to do this observation and instead to take the sample as soon as practicable after the breath demand is read. That demand for breathalyzer samples at a police station or on a breathalyzer bus must itself be read as soon as practicable after the failed roadside breathalyzer test.
So ultimately the result of this — the outcome of this — is that people are tested in circumstances where scientifically unreliable results are in fact obtained.
You may take comfort, but it is only small comfort, in the fact that this is not the majority of cases. And in most criminal investigations, there are the appropriate scientific procedures and safeguards in place to prevent against an unreliable result. But because this is not the procedure in every single case, it is simply not enough to dismiss issues that can affect the results of breathalyzer tests and say this will get sorted out later on. That is not the procedure that is always followed. That is not the result that always occurs and unfortunately, the problem with these factors that can affect breathalyzer tests means that innocent people can be convicted. Innocent people may be found guilty of impaired driving cases wrongly, or wrongly issued Immediate Roadside Prohibitions, especially where they don’t have experienced counsel in impaired driving. An experienced and knowledgable imparted driving lawyer will know all of the issues that can come up with a breathalyzer, affect the breathalyzer result, and identify those and rule them out to protect your innocence.
