Breathalyzer use under renewed attack in B.C. as critics challenge their accuracy

For years, police have relied on hand-held breath-testing machines as their main tool for determining whether a driver is impaired.

Critics have questioned the hand-held breathalyzer's accuracy and reliability almost from the beginning but the courts have upheld their use.

But the cop's key tool in pulling suspected drunk drivers off the road is under serious challenge in British Columbia, which led the country in stiffening impaired-driving laws.

A B.C. Supreme Court ruling this week undermined the way police can attest to the breathalyzer's accuracy.

CTV News reported the court determined a document known as the "Superintendent's Report on Approved Screening Devices" was inadmissible and an adjudicator who upheld a roadside driving prohibition imposed on a woman in February was wrong to rely on it.

[ Related: Report on breathalyzers not admissible in driving ban review: B.C. Supreme Court ]

Angela Lichun Buhr was pulled over around 2 a.m. and failed a breathalyzer test. The law allows drivers to request a second test using a different breathalyzer and Buhr's second blow into the machine failed to produce a reading.

Buhr challenged the driving ban at an adjudication review where her lawyer argued the second machine's temperature of nine degrees was below the 10-degree limit at which the breathalyzer manual says it can be used.

The adjudicator nonetheless upheld the ban, pointing to the superintendent's report that said a test can be completed even if the device could be inaccurate outside if used outside its correct operating temperature. The adjudicator said in effect that Buhr got her requested second test even though it might have been inaccurate.

But Justice Richard Goeppel said in his ruling the adjudicator should have limited the review to evidence submitted by the driver or the officer who imposed the driving ban.

"On this ground alone, the prohibition must be quashed," he concluded.

Critics of the breathalyzer and B.C.'s approach to driving bans have jumped on the ruling as evidence of the system's arbitrary nature.

[ Related: 1 in 5 who challenge roadside ban win ]

The government has credited the tougher law, implemented in 2010, with cutting the number of drunk-driving deaths substantially, according to CBC News.

But the Globe and Mail said opponents have attacked the way roadside bans are reviewed in a quasi-judicial process, as well as the reliance on breathalyzers.

Other driving prohibitions could be in jeopardy if adjudicators used superintendent's report in their reviews, the Globe said.

B.C. Justice Minister Suzanne Anton said only two per cent of the 1,500 roadside prohibitions handed out each month are successfully challenged.

The Canadian Press reported this week that roughly one in five B.C. drivers who've challenged their roadside driving bans had them overturned since the province tweaked its toughened its impaired-driving law last year to abide by a court ruling to add a proper appeal mechanism. That's about 2,700 drivers out of the 18,888 who received prohibitions in that period, CP said, citing government figures.

The driving bans can last up to 90 days and include impoundment of the vehicle — with attendant storage fees — plus fines and installation of a breathalyzer ignition interlock at the driver's expense.

Drivers who've lost their vehicles are not informed if a screening device used to test them was later found to be giving falsely high readings, the Globe said, citing documents obtained under a freedom-of-information request.

Drivers get a letter from the superintendent of motor vehicles instead, informing them the prohibition has been cancelled because it was found to be invalid for an unspecified reason, the Globe said. The motorist would have been improperly deprived of his or her car and driving privileges for weeks, presumably without compensation.

“The letter seems to indicate that somehow the Notice of Prohibition that was served on you was defective,” lawyer Paul Doroshenko of Acumen Law Corp. told the Globe.

“It doesn’t tell you the device was later found to be defective. That has a lot of implications because there’s liability issues here. You might be in a position to sue. You’ve been wrongfully punished, but you don’t know that. You think you’re getting off on a technicality.”

[ Related: Avoid coin-op breathalyzer units, say police ]

Superintendent Sam MacLeod said in a statement drivers are sent a form letter regardless of the reason their driving ban was cancelled because “the most important thing from our viewpoint is that the driver is notified as soon as possible," the Globe reported.

But Doroshenko, whose law firm has been a steady critic of the roadside ban policy, said drivers deserve better than a vague letter when a device is found to be giving false readings.

“I cannot fathom a reason to do that that stems from fairness,” he told the Globe. “The only reason I can think of is to try to obscure, or not make public, the fact that this happens.”