Impaired Driving

See Also: Drinking & Driving Case Results
See Also: ADP Administrative Driving Prohibitions
See Also: IRP Immediate Roadside Prohibitions (3-day, 7-day, 30-day, 90-day)

Governments have struggled for decades to reduce the number of people who get behind the wheel after drinking too much alcohol.  Federal law makes it a crime to operate or have care and control of a motor vehicle while the driver’s ability to drive is impaired by alcohol or a drug. The common criminal charges are impaired driving and driving with a blood alcohol concentration exceeding 80 milligrams in 100 milliliters of blood or refusing a lawful demand, normally for a breath or blood sample.

Impaired Operation
To prove their case the prosecution must show that the functional ability to operate a motor vehicle has been impaired. The test is impairment from slight to great, but the evidence required to prove impairment must establish the condition beyond a reasonable doubt. This may include physical symptoms such as slurred speech, bloodshot eyes, an odour of alcohol beverage, physical coordination problems as well as bad driving.

The police and witnesses normally testify concerning their observations of the suspected driver. A lawyer, skilled in the art of cross examination, can call into question the accuracy and the meaning of the observations. For example, the witnesses may have a poor recollection of surrounding events, poor notes or documents to support their observations. They may have misinterpreted their observations, mistaking illness for impairment, poor footwear for poor balance, inadequate driving skills for an inability to drive.

Driving Over 80mg
“Over .08” or having a blood/alcohol concentration in excess of 80mg in 100ml of blood is an offence normally proven with breath tests. The Criminal Code allows the police to make a formal demand to require a driver to provide samples of their breath for analysis into a Breathalyzer–style instrument. In BC the device is a BAC Datamaster C, designed in the early 1990s and normally manufactured between 1993 and 1995.

The proper procedures to operate the Datamaster are rigorous and rarely followed correctly by the police.

Paul Doroshenko is the only Vancouver Criminal Lawyer who owns a BAC Datamaster (he has two!), as well as several Approved Screening Devices (ASD) and an original Breathalyzer. We have studied the errors that occur when using these devices, and we know how to show when they have been used incorrectly.

Breath or Blood samples and the Charter of Rights and Freedoms

• See Also: Your Rights

Breath or blood samples can only be obtained in a lawful process. What this means is that the police cannot take samples unless they follow rules in the Criminal Code. The rules are strict, sometimes contradictory and very difficult to follow correctly. It’s our job to know the rules better than the police, and we do. If the police take samples in violation of the rules, they violate the driver’s Charter right to be free from unreasonable search and seizure. Upon Application to the Court by a Criminal Lawyer, this will often lead to the case being thrown out.

Refusing a Breath Demand

With respect to impairment by alcohol the police may make demands for breath or blood samples during the course of their investigation. Failure without a lawful excuse to comply with a lawful demand is a criminal offence. A demand that is not lawful may be lawfully refused; although this is something typically determined in court and should not be considered in making a decision concerning whether to blow.

The danger of refusing to blow is that you may be convicted of refusing to provide a sample AND impaired driving. You cannot be convicted of impaired driving and over .08 for the same incident.

Care and Control
The phrase “care and control” is taken from the Criminal Code referring to the offence of having care and control of a motor vehicle while one’s ability to operate a motor vehicle is impaired by alcohol or a drug. Although it is considered a separate offense, you cannot be convicted of impaired driving and care and control while impaired from the same set of facts. When the police recommend a change of “care and control” it suggests that the evidence may be insufficient to prove that the suspect occupied the seat for purpose of putting the vehicle in motion.

Punishment
As of July 2, 2008, the minimum punishment for a first offence is a criminal record, a $1000 fine and a 1-year absolute prohibition from driving. On a second offence, at least 30 days in jail and at least 120 days jail for a third or more convictions. The maximum punishment on a first offence prosecuted by indictment is five years in jail. If the offence leads to bodily harm to another person, 10 years of jail is the maximum penalty. In BC a third offence leads to a lifetime driving prohibition.

Roadside Breath Tests

See Also: How the Roadside Breath Tester Works

The police in Canada have the authority to demand that a person provide a sample of breath into an Approved Screening Device (Road-side tester) when a police officer:

Reasonably suspects the person has alcohol in their body,
AND
The person has within the proceeding three hours operated or had care and control of a motor vehicle.

The demand must be made forthwith and the sample must be taken forthwith, meaning right away.

Blowing a “Fail” on a Roadside Tester
IT IS NOT A CRIME to fail on the Approved Screening Device (ASD), nor can the results be used to prove a person was over .08 or impaired.

In BC a Fail result is no longer used to issue you a 90-day Immediate Roadside Driving Prohibition (IRP)  but it may permit the officer to make a breath demand for further samples, usually taken at a police detachment.

The Problem with Roadside Samples:

Police Officer (Operator) Error
Police officers often incorrectly use the device due to poor training, inexperience or technical problems with the device in the field.

Mouth Alcohol
Less than 1 drop of alcohol in a person’s mouth can cause the device to register a reading in excess of 80 mg in 100ml (“fail”). A burp, recent drinking or mouthwash very often will leave a person with a miniscule amount of alcohol in their mouth. Our studies have indicated that mouth alcohol can be present and cause a false fail more than 20 minutes after consumption or 10 minutes after a burp.

Faulty Device
ASD screeners, such as the Alco-Sensor IV which is used in BC, must be properly calibrated and maintained. If the device is used after the acceptable calibration period has expired, the police cannot rely on the results and the subsequent arrest and breath demand are likely unlawful. See ASD problems on our blog.

Alcohol Fumes
Our own tests have produced results that would show that a person who has breathed in alcohol fumes may provide a false positive sample indicating alcohol in their body. Theoretically, kissing someone who has been drinking could cause the ASD to indicate that a sober person is impaired by alcohol. It follows that a designated driver with a car load of drinking friends may blow a false “fail” without ever having had a drink.

The Breathalyzer / BAC Datamaster C
In British Columbia the police use the BAC Datamaster C as the Breathalyzer-style device to collect and analyze breath samples to determine blood/alcohol levels. The basic operation is that the device passes infrared radiation through the sample of breath and then measures the decrease in radiation at the far end of the breath chamber. The concentration of alcohol is calculated by determining the decrease of infrared light as it passes through the sample. Then, using an extrapolating formula, the device calculates the blood/alcohol content.

Proof of the .08 Charge – Certificate of Qualified Technician
Along with a Promise to Appear or Appearance Notice, the police will normally serve a copy of a Certificate of Qualified Technician on anyone who they have tested and believe committed the offence of driving or operating with a blood-alcohol concentration in excess of 80 milligrams in 100 millilitres. The original document is normally presented in court as evidence of the readings obtained.

If you have been served a Certificate of Qualified Technician it is essential that you preserve the document in the condition you received it and give the document as soon as possible to your Criminal Lawyer.

Common Datamaster Errors

The Datamaster is not simply an electro-mechanical computational device. Its accuracy is dependent on the proper and consistent functioning of a radiation source and imperative arithmetic operations. The device may display error codes some of which are commonly known; others are highly unusual.

Invalid Sample
The device has detected a rapidly declining alcohol concentration while accepting the sample. The presumption is that mouth alcohol has contaminated the sample.

Ambient Fail
During the purge cycle, the instrument has detected alcohol that theoretically should not be present. If Ambient Fail is reported before the test, the test should not be conducted and if conducted, cannot be considered reliable. If Ambient Fail is displayed after the test, it may be that left over alcohol has contaminated the purge cycle, although the source may be uncertain, and it may indicate a faulty internal valve.

Calibration Error
The instrument uses internal and external calibration tests to examine its own accuracy. If the internal calibration standard is outside 10% of its stored value, the instrument should not be used and readings obtained are not reliable.

Pump Error
Between tests the BAC Datamaster pumps air into the sample chamber as well as out of the instrument to the external standard. If the breath tube is blocked during the cycle, “Pump Error” may be displayed. If, however, the pump fails on its own accord, there is nothing specific to indicate the failure to the operator.

Not Calibrated
The instrument is no longer properly calibrated and should not be relied upon. Theoretically, calibration factors are properly maintained in the instrument’s memory. If the instrument detects a memory failure, it should display “Not Calibrated.”

Filter Error
The optical filters placed in the path of the infrared radiation source failed to register a change in voltage. The instrument should not be used as any readings are unreliable.

Interference Detected
The Datamaster, if functioning properly, should display “Interference Detected” if the instrument detects a substance other than alcohol interfering with the infrared radiation in the sample chamber. It does not provide an indication of what the substance might be.

Radio Interference
Radio interference from such devices as cell phones, hand held radios or pagers may interfere with the infrared source or detection at any point in the set up or testing procedure. If properly functioning, an internal component called the RF detection circuit should pick up the interference and the instrument will notify the operator.

Detector Overflow
The Datamaster has either detected a blood alcohol concentration in excess of 600 mg% or the external standard has flooded the sample chamber. The instrument is unusable until repaired.

Incomplete
This is a status message that appears if the Datamaster has not obtained a sample in the allocated period (typically 2 ½ minutes). The operator is then prompted with the questions “Subject Refuse (Y/N)?”