Demanding a second opinion

Behind the Wheel –

Drivers who blow a warn or a fail under BC’s new Immediate Roadside Prohibition (IRP) program may be concerned that the Approved Screening Device (ASD) used to test their breath was not operating properly when their sample of breath was tested. If this is the case, a second sample may be demanded using a different ASD. This right may carry it’s own danger if your reading was a warn.

Following the initial sampling of breath that produced the warn or fail analysis, the officer will read the demand requiring you to surrender your driver’s license pursuant to section 215.41 of the Motor Vehicle Act. That demand advises a driver that they have the right to immediately request a second test using a different ASD. If the reading was a warn, the driver will also be told that if they choose to demand that second test, regardless of the outcome, the result of that second test will apply.

The accuracy of an ASD is +/- 10 mg%. This means that a driver with a blood alcohol concentration (BAC) of 50 mg% (.05) may blow what the first ASD sees as between 50 and 60 mg% and show a warn result. The second ASD may decide that the sample is between 40 and 50 mg% and indicate a pass. This would mean that the driver’s second sample prevails and an IRP is not proceeded with. Similarly, the same situation might turn a fail into a warn.

However, the reverse is possible. The driver with a BAC of 100 mg% may register as 90 to 100 mg% on the first ASD and show as a warn. Demanding the second test could result in an analysis of between 100 and 110 mg% which would be a fail. By law, there is no returning to the warn analysis, the IRP provisions for the fail must be applied.

Clearly a driver must make a carefully considered decision about demanding a second test when the first analysis is a warn!

The author is a retired constable with many years of traffic enforcement experience. To comment or learn more, please visit http://www.drivesmartbc.ca.