.The Globe and Mail tests Breathalyzers at the Hamilton Street Grill, 1009 Hamilton Street in Vancouver, November 10, 2010.Laura Leyshon for the Globe and Mail/The Globe and Mail
B.C. police have issued a recall for all 2,200 of their roadside breathalyzers after learning the units have a margin of error that could have caused some drivers to unjustly blow over the 0.05 warning threshold.
The recall announcement was met with criticism by criminal defence lawyers and rights groups, who questioned how many British Columbians have been mistakenly issued prohibitions and fines since the province unveiled the toughest impaired driving laws in the country in September.
Chief Jamie Graham, head of the Victoria Police Department and a member of the B.C. Association of Chiefs of Police, announced the recall at a news conference Friday morning. Chief Graham said "a very small margin of error" could have caused some drivers to be unfairly punished.
He said the devices will be adjusted over the next 10 days and the minimum reading for a warning will be adjusted to .06 per cent blood-alcohol content.
"We have to be able to ensure that when a young officer has one of these [approved screening devices]that the readings are 100-per-cent guaranteed," Chief Graham told reporters.
Chief Graham, a former leader of the Vancouver Police Department, said he doesn't believe the mistaken readings apply to a great number of cases. He said he didn't have exact numbers.
But Michael Mulligan, a Victoria-based criminal defence lawyer, said it's clear some drivers were reprimanded when they shouldn't have been.
"What about all the people who have had their cars towed and impounded for a month? What about all of them? … What are they going to do about it? I rather suspect nothing," Mr. Mulligan said.
The province said in a statement Friday afternoon: "[It]is reviewing the implications for motorists who received fines or suspensions in the warning range."
B.C. introduced the strongest impaired driving laws in Canada two months ago. Drivers caught once in the warning range – between .05 and .08 – receive an immediate three-day driving ban and a $200 fine. A second warning leads to a seven-day ban, while a third leads to a 30-day prohibition.
Drivers who blow above .08, a fail rating, face an immediate 90-day driving ban and a $500 fine. Their vehicle is also impounded for 30 days.
Chief Graham did not clarify why the error that caused some drivers to mistakenly blow over .05 wouldn't cause other drivers to blow over .08.
Restaurant and bar owners have complained that the new laws have hurt business. Solicitor-General Rich Coleman said earlier this month the province is preparing an advertising campaign to tell people it's okay to drink a bit.
Mr. Coleman slipped past reporters Friday without taking questions. He did not return a call seeking comment.
Mr. Mulligan said roadside breathalyzers have long proven inconsistent, but it's difficult for British Columbians to challenge misreadings. Such pursuits, he said, can cost thousands of dollars.
David Eby, executive director of the B.C. Civil Liberties Association, said the recall reaffirms his organization's long-held view that the devices are "not foolproof."
"It opens a whole can of worms," he said.
Those who blow in the warning range in the next week and a half, while the machines are serviced, will not face a suspension. Those who blow over .08 will still face punishment.