An RCMP constable holds a breathalyzer test showing a driver's blood-alcohol reading of .04DARRYL DYCK/The Canadian Press
Terrible though the crime of driving drunk is, the police should not have the power to mete out severe punishments to suspected drunk drivers. A B.C. judge was right on Thursday to rule the practice unconstitutional. Based only on the reading of an imperfect roadside device, police in British Columbia dole out 90-day suspensions and penalties totalling more than $4,000. And no effective appeal is possible.
The Approved Screening Device used by police at roadsides is not an "approved instrument" in the Criminal Code – it can provide no evidence in a prosecution. Its accuracy could be affected by residual mouth alcohol from recent consumption – of alcohol or even mouthwash – or recent vomiting, according to testimony from Wayne Jeffery, a former head of the RCMP's toxicology lab in Vancouver. If it's not good enough for criminal cases, why is it good enough for punishment mandated by the province?
Its usual purpose, as outlined in the Criminal Code, is to provide reasonable grounds for a breathalyzer test at the police station. That breathalyzer test is done by a qualified technician. The device says only whether a person has passed, is in the warning range (.05-.08 blood-alcohol concentration) or failed (over .08). And the roadside device creates no permanent record of what it says – for that, a police officer's word is the only evidence.
Yet the automatic punishments for failing are steep, including the installation of a $1,500 device that disables a driver's car if they have been drinking. (These punishments are separate from criminal sanctions given out by a judge.)
A driver has more rights fighting a traffic ticket. Punished by a police officer for drunk driving, a driver may request an oral hearing in front of a judge, but no one can be cross-examined; the
police officer can submit an unsworn statement (no penal consequences if they don't tell the truth); and the hearing can go on even if the officer hasn't submitted all required documents.
This is justice? Allowing police to punish, based on a suspect instrument, and to be beyond appeal?
It may be that the law saves lives, as Attorney-General Shirley Bond says, but it's hard to see how punishing the innocent contributes to that. Even if it does, it's wrong. There's no reason the province can't wait for the courts to prosecute before adding in punishments for being over .08.