In June 2014, we wrote a blog post addressing what scientific research the British Columbia government had conducted before it began punishing drivers on the basis of roadside breathalyzer results. The answer was that it had conducted none.
An Approved Screening Device was (and is) exactly what its name suggested. It was a screening device. For decades, police used these small handheld devices to help decide whether a driver should undergo further investigation. A “Fail” result usually led to testing on a larger evidentiary breathalyzer at the police station. That instrument at the detachment produced records, preserved data and underwent self testing against an alcohol standard. The roadside screening device was never designed to replace it.
In 2010 the British Columbia government erased that distinction. Under the Immediate Roadside Prohibition scheme, the screening result became the evidence and the basis for punishment. A driver could lose their licence for 90 days, have their vehicle impounded for 30 days and face thousands of dollars in additional expenses and consequences. All of this could happen without a trial and without a confirmatory test on an evidentiary breathalyzer.
The government changed the legal purpose of the screening device without first demonstrating that it was scientifically suitable for its new role. Drivers are punished whether they are actually guilty or not.
What changed?
Some things changed, but nothing really meaningful.
A driver could always apply for a review of an Immediate Roadside Prohibition. The original problem was that the review is confined to narrow statutory grounds. In the first version of the IRP scheme, a driver could possess compelling evidence that the ASD result was wrong and still be without a remedy.
The government amended the review provisions in 2012 to permit a driver to introduce evidence to the contrary. For example, a driver could rely on drinking-pattern evidence and expert calculations to show that their blood-alcohol concentration could not have produced the alleged result. This resembled the old Carter defence used in criminal over-80 cases.
The first version of the scheme was struck down largely because there was no such review provision. Supreme Court of Canada never considered this revised scheme. More importantly, the amendments have not produced a meaningful process for challenging an ASD result. The review takes place before a government-run tribunal. In practice, applicants must prove their cases to a different standard than the one applied to police evidence.
Bad police evidence is regularly given a pass. Evidence filed by an applicant is parsed and subjected to embarrassingly oblique scrutiny. Inconsistencies in an applicant’s case are treated as decisive, while at the same time gaps or problems in the police evidence are explained away. The driver challenging the prohibition faces a seven-day deadline and must attempt to prove the screening result wrong without access to cross-examination, complete disclosure or the normal tools available in a trial.
The ability to advance evidence to the contrary might appear significant but its value depends on whether the decision-maker assesses the evidence fairly. It is hard to call a system fair when you are denied meaningful disclosure or an opportunity to confront your accuser.
Approval is not the same as validation
Roadside screening devices are evaluated before the federal government approves them for use under the Criminal Code. That tells us that a particular model can function as a screening device when properly operated under proper conditions. It does not establish that the device should serve as the basis for punishment.
In a conventional criminal impaired-driving investigation, the screening device determines whether the police may demand evidentiary breath samples. The prosecution relies on the evidentiary results, not the roadside “Fail,” to prove the driver’s blood-alcohol concentration. In fact, a “Fail” is not admissible in the criminal context to establish a blood-alcohol concentration.
British Columbia removed that second stage from most roadside cases. The province took a screener approved for one purpose and assigned it a much more consequential purpose.
The device is only part of the system
Even a properly designed device can produce an unreliable result when the surrounding system fails. Police must maintain the device, conduct accuracy checks, use approved alcohol standards, account for mouth alcohol and follow the manufacturer’s instructions. The records must also be complete enough to determine whether those things actually occurred.
We regularly encounter missing records, inconsistent times, unexplained test results, devices removed from service and police reports that do not accurately describe what happened at the roadside. The existence of a maintenance program does not prove that it was followed.
Reliable scientific measurements should produce records that can be independently examined. The IRP system asks a government adjudicator to place enormous weight on a small screening device while providing the driver with only seven days to apply for a review and no means to investigate what occurred.
Years later, the question remains
The government typically points to second-sample rights and federal device-approval standards or reductions in alcohol-related collisions. Of course, none of that answers the important question we asked in 2014: what scientific research demonstrates that roadside screening devices are reliable enough to serve as the sole evidence supporting immediate and substantial punishment?
The IRP scheme has now existed long enough to be considered permanent. Still, familiarity is not validation and longevity does not mean it is right, fair or justified.
British Columbia turned a screening device into a punishment machine without any research to back up that decision. We challenged them with a blog post, and twelve years later, the government has not conducted any research whatsoever on the reliability of using a screener for punishment. What that tells us is that they do not want to know the answer to the question we posed.
