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Ruling could lead to quashing of hundreds of drunk-driving bans, lawyer says

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, B.C., March 12, 2013.

Rafal Gerszak/The Globe and Mail

Critics of British Columbia's immediate bans for impaired driving have a new arrow in their quiver, after the B.C. Supreme Court ruled on Monday that a government report on the roadside screening devices should have been inadmissible during the review process.

The report was used by a government adjudicator to reject an appeal by Angela Buhr that her roadside ban – which included an immediate driving prohibition and her car being impounded on the spot – should have been thrown out because of a problem with the screening device, a portable breathalyzer that critics have argued is too unreliable for such harsh, instant penalties.

Justice Richard Goepel ruled that the review of Ms. Buhr's case should only have used documents submitted by either her or the police officer involved. The government's report, called the Superintendent's Report on Approved Screening Devices, was inadmissible for settling a dispute over the device's accuracy, Justice Goepel said.

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The decision opens the way for the overturning of other adjudicator decisions that relied on the report, which could number in the hundreds.

"It was used all the time. …We definitely have cases, and we were just trying to pull up estimates from our office, and we'd say maybe 150," said criminal defence lawyer Paul Doroshenko. His firm represented Ms. Buhr and has been a persistent opponent of the immediate roadside prohibition program.

Sam MacLeod, B.C.'s Superintendent of Motor Vehicles, released a statement on Tuesday that cautioned against drawing larger conclusions.

"The court ruling directed this particular case to be readjudicated by my office, which means it's still an active case," he said. "We're looking closely at that with our lawyers about the best way to proceed. Until we make a decision on how we will move forward, I can tell you that we won't be using the report."

But Ms. Buhr's case deals directly with the most controversial aspects of B.C.'s strict drunk driving legislation, brought in three years ago. Although the government has touted statistics showing a 51-per-cent reduction in drunk driving fatalities since the laws took effect, the legislation was amended in May, 2012, after the B.C. Supreme Court ruled that the lacklustre review process violated the Charter of Rights and Freedoms.

Furthermore, critics say the roadside screening devices were designed only to be an initial test before a proper analysis could be done on the advanced breathalyzers at a police detachment.

Instead, the devices are now used to decide immediate roadside bans despite concerns over reliability.

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In Ms. Buhr's case, the issue was over the device's internal temperature, which the police officer had registered at 9 C., below the minimum operating temperature of 10 C. When Ms. Buhr tried to use the device (after failing a first test on a different device), it didn't register a result and the police officer wouldn't allow another attempt.

The adjudicator, relying on the government report, said the low temperature shouldn't matter because the device would still function but with less accuracy – and any inaccuracy would be in the driver's favour.

Nizar Shajani, a forensic scientist who worked for the RCMP for 12 years and specialized in blood-alcohol testing, said that, even aside from the temperature issue – and he disagreed that the inaccuracy would be in the driver's favour – the screening devices remain highly problematic because of difficulties around calibration and false readings.

He said they are too susceptible, for example, to reading mouth alcohol levels if someone burped recently, rather than blood alcohol. "There's no control done at the time of the test, how do we know it's working properly?" Mr. Shajani said.

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