Under the new Immediate Roadside Prohibition rules, motorists are able to take a second test on a different device, says RCMP Constable Steve Holmes.
"Holmes says the driver, who had a strong odour of liquor on his breath, proceeded to blow a fail on his second try.
The man had initially been stopped by police in the 600 block of Finns Road after he spun his tires in the parking lot of a liquor store, which he had just patronized.
His vehicle will be impounded for 30 days and he was given an immediate 90 day driving prohibition.
Had the driver stuck with a warn, he would have faced only a three day driving ban and a three day impound."
It seems we are now penalized for asking for confirmation. One of these machines may be accurate. Why are we not given the the benefit of the lower reading or at least a third reading to give the Officer and the citizen an opportunity to see which machine may be more accurate.
I do not drink and drive at all but am appalled at this.
The new legislation says:
Opportunity for second analysis
215.42 (1) If an analysis of the breath of a person by means of an approved screening device under section 215.41 (3) registers a warn or a fail, a second analysis must be performed if, after a peace officer serves on the person a notice of driving prohibition under section 215.41 (3) (d), the person forthwith requests the second analysis.
(2) A second analysis performed under this section must be performed with a different approved screening device than was used in the analysis under section 215.41 (3).
(3) If a person provides a sample of breath for a second analysis under this section forthwith on being requested to so by the peace officer, the result of the second analysis governs, and any prohibition resulting from the analysis under section 215.41 (3) continues or terminates or is varied accordingly.
The police are bound by the legislation and this is what the provincial legislators have decided will govern the situation.
This is nothing new. In past years when I prohibited a driver for 24 hours using an approved screening device they had the right to demand a breath test to prove the accuracy of the reading. If they failed the subsequent breath test, I now had reasonable and probable grounds to believe that they were impaired by alcohol and would commence an impaired driving investigation. I always warned drivers that they should consider the demand carefully because of this possibility. This was not required by policy, it was just something I felt was proper for me to do.
The screening devices and the other breath testing equipment used by police are calibrated regularly and have an accuracy of +/- 10 mg%. With the screening device a number is displayed on analysis if the sample analyzes between 0 and 49 mg%. A warn is displayed between 50 and 99 mg% and a fail for any samples 100 mg% or higher. So, this man's test on the first device may have been seen as less than 100 and the second device as more than 100 when both are operating properly and measuring as intended.
Remember too that what we have here is a driver that knew full well that they had consumed too much alcohol to be driving. Their choice to get behind the wheel is what got them caught up in the situation.
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Why Does the Second Test Rule?