Breath Test Devices Manipulated To Show Higher BAC Levels.
This past Summer the BC government lowered the breath alcohol limit and increased penalties to be imposed on the roadside by police officer’s. Not surprisingly it is now discovered that in the absence of checks and balances to their unfettered roadside police power, the device employed by the officers provide false readings- falsely high readings.
Lawyers Claim Faulty Use Of Breathalyzer
BY KIM WESTAD, POSTMEDIA NEWS MARCH 4, 2011
A class-action lawsuit challenging impaired driving penalties given out under new drunk driving legislation was filed Thursday in Vancouver.
The lawsuit says that, between Sept. 20 and Nov. 19, police officers throughout the province were negligent in their use of the roadside breathalyzer device, which determines a driver’s blood-alcohol level.
Legislation came into effect Sept. 20 that penalizes drivers whose bloodalcohol concentration is between .05 and .08. The level is determined by a roadside breathalyzer, which indicates “warn” if a person’s blood-alcohol level is between those numbers.
The lawsuit alleges that until Nov. 19 police used improperly programmed breathalyzers to determine the reading, which resulted in drivers being penalized when their blood-alcohol levels were below .05, said Michael Thomas, one of the lawyers who filed the lawsuit.
On Nov. 19, Victoria police Chief Jamie Graham, as chairman of the B.C. Association of Chiefs of Police traffic safety committee, recalled 2,200 roadside breathalyzers after RCMP lab tests found a margin of error in the devices. The RCMP found the units could indicate a reading over .05 when the driver was actually under it.
The units were re-set so that a “warn” reading is obtained if the driver blows .06, recognizing the potential machine error.
“The way the legislation is drafted, the public has to rely upon proper enforcement. Our allegation is that that wasn’t done in this time period,” Thomas said.
Police either improperly programmed the devices or failed to detect that they weren’t programmed accurately, the lawsuit alleges. An estimated 170 people a week faced licence suspensions during the period, with penalties ranging from $600 to $4,060.
For a driver with one “warn” reading in the past five years, the minimum penalty is an immediate loss of licence for three days, a $200 penalty and a $250 licence reinstatement fee -and the likely loss of one’s vehicle for the three days, plus towing and storage fees. For those with more than one reading above the legal limit, the penalties escalate.
In a class-action suit, one person sues on behalf of all the people who have similarly suffered.
The lawsuit has to go to B.C. Supreme Court to be classified as a class-action suit before proceeding. That will likely happen within three months, Thomas said.
He will ask for repayment of costs incurred by people who were improperly penalized.
This week, Solicitor-General Rich Coleman said the province is considering allowing drivers to appeal roadside penalties for impaired driving offences.
That would make no difference to the lawsuit, Thomas said.
On the heels of this lawsuit, the BC government announced that there will now be an appeal process for a driver who wishes to contest this roadside suspension, but the appeal may be too little, too late.
Here in Washington, breath testing is subjected to numerous and rigorous challenges by defense attorneys such as myself. These challenges routinely target the claimed accuracy of testing in a DUI prosecution. These challenges are important due to the fact that what hangs in the balance is not only the potential loss of a drivers license, but most importantly freedom vs. incarceration.
It is well known, and established by law here in Washington that the same handheld devices described above, used by law enforcement here, are not reliable proof of anything other than establishing that a person has consumed alcohol. Administration of these tests and the readings provided are only admissible in a hearing to challenge the lawfulness of a driver’s DUI arrest. They are not admissible in a trial due to their unreliability. This is set forth in Washington Administrative Code (WAC) 448-15. The devices use “Fuel Cell” technology and this type of technology will provide false positives as a result of cold weather conditions, recently consumed pizza, and dozens of other factors.
The more advanced technology used utilizes “Infrared” testing. The basic explanation is that light passes through a small sample of air blown into the machine by an arrested person. While this technology is better, it is far from perfect and currently it is behind the “scientifically reliable curve.” As a result, Washington has cleared the way for a new generation of breath testing machine, and has purchased about half of the units needed. While this leap into the current breath testing generation is admirable, i cant help but wonder why the units purchased simply sit in storage rather than be deployed immediately? Perhaps it impeaches the accuracy and reliability of the current machine in use that has been around since the last century (1987).
A DUI charge is full of complex evidence that only the most experienced DUI lawyer can demystify and expose its limitations and “secrets.” As a result whether you are over .02 (Minor DUI), .04 (CDL DUI), or .08 (DUI), or if you are under the legal .08 limit, the charge is not to be taken lightly nor is it for the inexperienced. A successful outcome requires a highly specialized level of understanding, skill, passion, and compassion. Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands | http://www.jrandslaw.com Email:jrands@jonathanrands.com | Phn. 360.306.8136 | Jonathan Rands is Focused On Your DUI Defense and provides legal services for cases in Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI’s Tracy Ellis every other Sunday on the Legal Docket.
Washington State Supreme Court Still Focused On Citizen’s Privacy.
Although July 4th is a nationally recognized holiday celebrating the freedom and civil liberties of those within the land, July 1, 2010, the State Supreme court celebrated early. In the recently issued case of, State v. Afana, the State Supreme Court followed the US Supreme Court reasoning in Gant (police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search) and then added another layer of protection to driver’s in the state of Washington. This protection is state-wide. While this was a non-DUI case, it has important ramifications to those seized and arrested for a Washington DUI because a search of the vehicle when the person is in the back of a police cruiser can lead to the discovery of other items.
These items may be as trivial as a “switchblade” knife, a small amount of marijuana residue in a “smoking device,” or as serious as a firearm that the person has no license for. Regardless of what our belief systems about these items are, the law is now settled: A discovery of items post-arrest when the person is handcuffed and locked away in the police cruiser is unlawful. Rather than find an excuse to ignore precedent, the Court clearly recognized the dangers associated with ignoring the historical protection given to citizens as evidenced by the following:
“In effect, the State asks us to make an exception to the exclusionary rule for illegally obtained evidence by analogy to cases in which the evidence was obtained legally. This we will not do. We reject the State’s argument that the “good faith” exception. . . and hold that it is incompatible with the nearly categorical exclusionary rule under article I, section 7. Article I, section 7 of our state constitution “clearly recognizes an individual’s right to privacy with no express limitations.” Unlike the Federal protection under the 4th amendment the court focused its attention to the more protective state Constitution, article I, section 7 emphasizes “protecting personal rights rather than on curbing governmental actions.” This understanding of that provision of our state constitution has led us to conclude that the “right of privacy shall not be diminished by the judicial gloss of a selectively applied exclusionary remedy.” Thus, while our state’s exclusionary rule also aims to deter unlawful police action, its paramount concern is protecting an individual’s right of privacy. Therefore, if a police officer has disturbed a person’s “private affairs,” we do not ask whether the officer’s belief that this disturbance was justified was objectively reasonable, but simply whether the officer had the requisite “authority of law.” If not, any evidence seized unlawfully will be suppressed. With very few exceptions, whenever the right of privacy is violated, the remedy follows automatically.”
What this means is that the legality of the seizure or arrest is not the issue, rather the issue is whether the officer had the authority to search the vehicle after arrest once the person is safely removed and handcuffed in the rear of a police vehicle. All too often, officers engage in a fishing expedition of the arrested person’s vehicle in hopes of finding incriminating evidence so that additional charges can be stacked on top of the primary offense of DUI. In almost every arrest, where the person was previously in a vehicle, police officers open personal items simply because it is subsequent to an arrest. They often have no indications that they may find additional items, yet searched simply because they could. Such searches are no longer lawful. Driver’s and citizens alike no longer have to be embarrassed, or forced to plead guilty to charges that would otherwise be reduced because of something else found in their vehicle. Sometimes the items are known to the driver, other times they are not. Consider the driver who is arrested for DUI and his/her passenger has marijuana on them and once stopped sees fit to stash it in the console, under the seat, or in the glove compartment. Or consider a scenario where the newly graduated High Schooler who is the designated driver giving his under-age friends who have been drinking a safe way home. The friends have bottles of alcohol with them and hide them in the car when the officer is not looking. One thing inevitably leads to another and the traditional scenario plays out where the driver now faces new or additional charges because the car was searched-his/her privacy was violated. It may seem like this is a farfetched defense lawyer hypothetical, but in reality, the hypothetical is ALWAYS inspired by real life and true scenarios that are often times much worse.
As a result of this ruling, the person facing a Washington DUI, will most likely never again see additional charges of Possession of a marijuana pipe, or possession of a “springblade” knife, possession of a marijuana less than 40 grams. This is important because the defense can be focused on the primary charge: DUI.
Since a Washington DUI is a very serious offense, and an accused driver needs a dedicated and knowledgeable DUI lawyer to be focused and challenge the allegations that use aging and obsolete breath testing devices, or improperly administered sobriety tests that are nothing more than exercises equivalent to patting the head and rubbing the tummy couched in scientific language. Such are the tools used by the State agents to ferret out and attempt to prove DUI beyond a reasonable doubt.
As a result, never having to deal with other unlawfully obtained evidence pursuant an unlawful search that places a driver in a poor light, means that a person will remain to be truly “presumed innocent,” unless/until the charges are proven beyond a reasonable doubt, and those charged with the honorable and monumental task of providing a defense will have a more level playing field.
DUI is not an allegation to be dealt with lightly and this is exactly why an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success is mandatory. If you or someone you know is facing a DUI or other alcohol related arrest or charge, Jonathan Rands can be reached at http://www.jrandslaw.com | Email: jrands@jonathanrands.com| Phn. 360.306.8136| Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties.
Do New BC DUI Laws Violate Rights?
Given the fact that Whatcom County is on the BC/Canada border, BC’s new DUI penalties should be of some interest to Whatcom County citizens. Regardless of how you feel about DUI, the rights of citizens should never succumb to the zeal of interests groups. These new laws have that appearance. The new “laws” are not really laws, but rather administrative sanctions that are imposed on the roadside without judge, jury, or representation.
The introduction of BC’s new administrative procedures is Canada’s toughest yet. Furthermore, after the officer makes contact and submits a report, these sanctions will be imposed in secret, and with no public record of the offence. These penalties for impaired driving will not show up in any court records and are shielded from public scrutiny. While the practice is defended and rationalized as “a person’s driving record, is considered personal and confidential,” as stated by superintendent Steve Martin, consider the old saying “out of sight, out of mind.” The more secretive, and the more hidden the “punishment” the easier it is to forget about citizen rights. This is not intended to “defend” the act of DUI in a county where there is zero tolerance, but rather simply a comment on the slippery slope of eroding citizen’s rights.
The Motor Vehicle Act’s new sanctions before a citizen ever get to see the inside of a court room to face a DUI charge are:
Drivers who provide a failing breath sample above 0.08 or refuse to provide a breath sample at the roadside will face an immediate, 90-day driving ban and a $500 fine. They will also have their vehicle impounded for 30 days.
Drivers caught once in the “warn” range (roadside reading between 0.05 and 0.08 BAC) in a five-year period will face an immediate, three-day driving ban and a $200 fine; a second time roadside test with a “warn,” a seven-day ban and a $300 fine; and a third roadside “warn” BAC, a 30-day ban and a $400 fine.
Any driver who blows once in the “fail” range, or three times within five years in the “warn” range, will be required to participate in the rehabilitative responsible driver program and they must also use an ignition interlock device, for one year. This means that you may never have been above a .08, but suffer loss of license and vehicle.
The new, roadside-issued, 90-day bans mean officers will no longer need to take drivers to the station for a full breath analysis in order to impose a driving ban longer than 24 hours. The changes to B.C.’s impaired driving laws are expected to come into effect in fall 2010.
While these new laws are thought to “help all law enforcement officers apprehend and reduce the number of impaired drivers in the province,” according to the RCMP’s B.C. Traffic Services, it will come at a considerable cost to citizen’s rights and privileges.
Here in the state of Washington, a roadside breath test is voluntary and there is no penalty for providing a sample, or not. These devices are fairly unreliable as far as proof of a DUI goes, which is why drivers are taken to another location and offered a more reliable breath test. This instrument is the same breath test instrument as that used in BC. Once a citizen provides a breath sample 2 times, both being above a .08 (.02 for a minor) or refuses, then sanctions are triggered, as well as the right to challenge the evidence presented.
As a DUI focused attorney I have seen many mistakes in police reports that have saved a citizen from wrongful suspension/revocation of a very important privilege. These mistakes are after the arresting officer has had hours and sometimes days to create a very detailed report. Think about the errors that can be made on the side of the road with no one checking accuracy? We are all human and make mistakes and while swift and certain punishment is an admirable goal, it should not come at such a high cost in the form of citizen rights and a simple “second look” by impartial eyes.
