They say that the first step toward dealing with a problem is first admitting that you have one.
In October 2011, we revealed that the Port Moody police were performing too many calibration tests with each bottle of test solution. The Canadian Society of Forensic Science Alcohol Test Committee sets the standards which are used by all police forces in Canada. If a breathalyzer technician fails to follow the standards, the test is not relied on because it is not accepted as reliable according to the recommendations of the Alcohol Test Committee (ATC).
The ATC makes their recommendations based on the scientific literature, tests made in preparation for the recommendations and their knowledge of the subject matter. With respect to ASD calibration, the ATC stipulates some of the steps to properly test and re-calibrate the units. In the event that you are using a wet-bath standard to simulate the BAC results, the ATC says that you must change the standard alcohol solution after blowing 16 times through the solution when conducting calibration tests.
The ATC standards for ASDs were developed when they were only used as a screening device. They would, no doubt, be stricter if the standards were created knowing ASDs were to be used for punishment, such as with IRPs.
We sent a letter to Port Moody asking how often the officer changed the solution. We did this because it appeared the officer was not aware of the ATC standard. He responded that he was blowing through it 18 to 50 times before replacing the bottle.
It seems likely that the first few calibration checks per bottle would have been okay. The problem is, there is no indication in their records of which ones they calibrated first.
So, for over a year the officer did not follow correct procedure when calibrating the ASDs in Port Moody.
The OSMV takes the position that if an ASD was used 1 minute beyond its calibration expiry, the IRP is invalid. Sadly, this was a defence, but innocence was not, which is why the Court found that the law violates the Charter. Nevertheless, bearing in mind that one minute beyond the calibration expiry was enough to revoke an IRP, certainly the officer not following proper calibration procedure would be just cause to revoke it?
This being the case, every IRP from this period issued in Port Moody based on a Warn or Fail should be revoked.
This is an easy determination — read the standards, make a few phone calls and you can easily see the mistake that was made and how it happened. Still, rather than come out and admit they have a problem, the Port Moody Police called the New Westminster Police to come in and investigate.
To us an investigation is a colossal waste of money. The only reason to do this, as far as we are concerned, is to bury the story. Remember, ASDs are still used for over .05 (Warn) IRPs and the BC Government still dreams of re-introducing the 90-day scheme in June. This is embarrassing for the Government and the police. So we believe that they are now merely trying to delay the matter until it is forgotten.
If you start a fire by mistake, we think you should put it out as soon as possible to avoid causing further damage. Those people who received IRPs from Port Moody should have received a phone call from the police notifying them of the mistake by the first week of November 2011.
In any event, it is time for the Port Moody Police to come out and admit their mistake and start putting things right. Just because the law has been found to violate the Charter, it does not mean that the people who received IRPs based on their ASDs are somehow not being wrongfully punished at this very moment. Many 90-day IRPs are still in place, people have yet to pay fines and do not forget the RDP and interlock.
The Port Moody police should have called everyone with an IRP from their ASDs to inform them of this mistake months ago. At this point, they are merely delaying the inevitable and causing more harm.
We are concerned that they may be puzzling and squirming to try and find a way to deflect responsibility. It would be preferable if they would just admit to their problem.
Often it is best to admit you have a problem. It is the first step toward rehabilitation.