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Nizar Shajani, a forensic consultant, demonstrates the use of an Approved Screening Device(Breathalyzer), which is used by all B.C. police forces, in Burnaby, British Columbia, Tuesday, March 12, 2013. (Rafal Gerszak For The Globe and Mail)
Nizar Shajani, a forensic consultant, demonstrates the use of an Approved Screening Device(Breathalyzer), which is used by all B.C. police forces, in Burnaby, British Columbia, Tuesday, March 12, 2013. (Rafal Gerszak For The Globe and Mail)

Critics of drunk-driving laws take aim at screening devices Add to ...

The provincial Justice Minister is standing by the province’s drunk-driving laws despite increasing criticisms of the program over the review process for roadside prohibitions, and concerns about unreliable screening devices.

Suzanne Anton said challenges to the “very successful program,” now three years old, are inevitable given the volume of prohibitions it yields, but that the program remains a sound means of keeping impaired drivers off the road.

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“It’s legislation which is sound,” Ms. Anton told reporters this week. “Of course, people are going to take pokes at it, but fundamentally the legislation is very good. It has been extremely effective in keeping people who are drinking out from behind the wheels of their cars.”

This week, the B.C. Supreme Court quashed a ban that had been upheld after review, because the government had relied on a report that should have been inadmissible in the review process. The ruling could lead to many more bans being overturned, depending how often the inadmissible report had been used.

Only 2 per cent of 1,500 roadside prohibitions each month have been successfully challenged, Ms. Anton said, and deemed that ratio one reflection of the program’s success.

But the program continues to prompt questions. Drivers hit with an Immediate Roadside Prohibition – which can include a driving prohibition of up to 90 days, the vehicle being impounded on the spot, substantial fines and an ignition interlock device installed in the vehicle – are not told if the screening device used to test them is later found to be giving falsely high readings, according to documents disclosed in a freedom of information request.

Instead, drivers are mailed a letter informing them their prohibition has been cancelled because the “Notice of Driving Prohibition” has been found invalid, with no mention of any specific reason. The cancellation comes weeks after the vehicle has been impounded and the driving licence suspended.

The documents highlighting the practice were requested by the Acumen Law Corporation, which has been a consistent opponent of the Immediate Roadside Prohibition program since it came into effect.

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

The documents show examples of roadside screening devices found to be giving falsely high readings in RCMP detachments in 100 Mile House, Clinton, Fort Nelson and Squamish, as well as the Nelson Police Department.

The defective devices were used for seven roadside prohibitions between July, 2012, and January, 2013.

In a written statement, Sam MacLeod, superintendent of motor vehicles, said drivers are sent a form letter regardless of the cancellation reason because “the most important thing from our viewpoint is that the driver is notified as soon as possible.”

The screening devices, which are all Alco-Sensor IV DWFs, are calibrated every 28 days. When the roadside prohibition legislation was amended last year, police were required to inform drivers of their right to a second roadside test on a different device if the first one gave them a fail. The released documents do not show the test result of the other devices, though in one case the driver did not request a second test after the defective device gave that driver a fail.

Mr. Doroshenko said drivers deserve better than a vague letter when the device used on them is later found to give false readings. “I cannot fathom a reason to do that that stems from fairness,” he said. “The only reason I can think of is to try to obscure, or not make public, the fact that this happens.”

In a statement, the superintendent of motor vehicles said circumstances of roadside-prohibition issues due to invalid devices are “extremely rare” and the devices used by B.C. police have been determined to be accurate and reliable as screening devices. Critics, however, point out the devices were only intended as a screening process before giving a more reliable test on an advanced breath test at a police station.

Leonard Krog, the NDP critic for the Attorney-General, said the “poorly drafted” legislation is showing its weaknesses as it is tested by the courts, and that it should be subject of a review that would include government lawyers and the opposition. “There may well be further weaknesses that come to the fore. When you have a series of people successful against a law, it brings the system into disrepute.”

Follow on Twitter: @ianabailey

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