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Breathalyzer inaccuracy erases conviction
Devices have a 10-milligram margin of error
The Canadian Press
Police breathalyzers have a margin of error that was not taken into account when a man's driving ban was upheld, a B.C. Supreme Court judge has ruled. (CBC)
A B.C. judge has overturned a man's driving ban, citing a discrepancy in the precision of police breathalyzers at a time when the province is cracking down on drinking and driving.
Richard Rossi challenged his .08 alcohol reading in court after he was stopped by an RCMP officer after drinking two beers in Fort Nelson last April, and an adjudicator subsequently upheld his driving ban.
An expert report noted there is a plus or minus 10-milligram error inherent in the blood alcohol content breath sample device, meaning his true blood-alcohol content could have been between 70 and 90 milligrams in 100 millilitres of blood.
Rossi's lawyer Richard Gibbs says such imprecise instruments are a problem when the provincial government sets an absolute limit of .05 or .08 and someone blows on either side of that line.
The variance wouldn't be an issue for those who blow substantially over the limit, Gibbs said. But it will be more of a problem now that the government is paying more attention to people who are trying to drink and drive responsibly.
"They're trying to keep it to the minimum and, so far, we don't have zero tolerance for drinking and driving," he said.
In a decision released Tuesday, B.C. Supreme Court Justice Catherine Wedge ruled that the adjudicator misread the expert's report and had rejected the evidence because he didn't understand the expert.
She stayed Rossi's driving prohibition, ordered the superintendent of motor vehicles to hold another hearing and ordered that Rossi's legal costs be paid by the Crown.
B.C. instituted the toughest drinking and driving laws in Canada in September.
Adjudicator role criticized
Drivers caught once with a blood alcohol level in the warning range — between 0.05 and 0.08 — face an immediate, three-day driving ban and a $200 fine.
There is a 90-day driving ban and a $500 fine for anyone who refuses a breathalyzer test or blows over 0.08. Those blowing over 0.08 will have their vehicles impounded for 30 days and may also face criminal charges.
The punishment is handed out by police and is formalized by an adjudicator, not a judge.
Gibbs said the reliance on adjudicators means due process disappears.
"You don't get an independent judge, you don't get to apply the (rights) charter in the way that you would if you were accused of an offence, you don't get presumption of innocence," he said. "It's administrative law dealing with a privilege, which is the legal status of driving."
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