Open bottles of alcohol found in a motorist's car sit on the vehicle as RCMP Cnst. Kim True conducts a breathalyzer test on the driver during a roadside check in Surrey, B.C., just before midnight on Friday September 24, 2010. The driver was found to have not been drinking and the bottles belonged to the passengers. The B.C. Supreme Court says the high costs and lengthy roadside suspensions imposed on some drivers who fail a blood-alcohol test are unconstitutional.Darryl Dyck/The Canadian Press
More than 20 per cent of the immediate roadside driving suspensions reviewed in December, 2012, were overturned by the B.C. government, with unreliable breath-analysis machines being the most common reason, a Globe and Mail analysis reveals.
A total of 240 suspensions were reviewed by a government adjudicator in December, according to a B.C. Ministry of Justice spokesperson.
The analysis shows that some driving suspensions were overturned long after the individuals had served their punishments.
The findings raise further questions about the controversial B.C. Immediate Roadside Prohibition program, which has been subject to several legal challenges.
The review decisions were requested through access to information legislation and the B.C. government posted them online.
While the vast majority of the decisions were handed down within weeks of the suspension being issued, six were overturned after the 90-day driving suspension period. In all six cases, the suspension was overturned over a year after it was issued.
Stephanie Melvin, the deputy superintendent of motor vehicles, said that since the program began in September of 2010, 866 suspensions have been revoked, about 20 per cent of the 4,020 cases that have come up for review. She said, however, that only represents 2 per cent of the 40,000 suspensions issued since the program began, and that the "government stands by its IRP program as both a fair and effective way to save lives on B.C. roads." Most suspensions go unchallenged.
The B.C. IRP program requires police officers to offer an individual suspected of intoxication two tests on two machines of the same model – Alco-Sensor IV DWF – with the lower result prevailing. Prior to June, 2012, only one test was required.
The machines register "Pass," "Warn" and "Fail," readings. A "Warn," is when blood-alcohol concentrations are between 50 and 80 milligrams per 100 millilitres of blood (0.05-0.08), resulting in an immediate three-day driving suspension.
A "Fail" is anything above 0.08, an immediate 90-day suspension.
The province allows for individuals to appeal their driving suspensions for a review within seven days of it being issued.
The analysis of the December review decisions reveals that more than 20 suspensions were overturned because an adjudicator determined the devices used for the breath samples were not "reliable." Many of those decisions did not provide any more details than that.
The ministry does revoke the monetary penalty if a decision is overturned, as well as the suspension on an individual's driving record.
Some argue, however, that by the time a suspension is overturned, the damage is done.
Kelly Willis was given a 90-day driving suspension in July, 2011, and for several months after that, an immobilizer was placed in his vehicle that required him to provide a breath sample for his vehicle to start.
In February, 2013, the Office of the Superintendent of Motor Vehicles exonerated him, over a year and a half after he was issued the suspension.
Mr. Willis, a B.C. Hydro worker, says he relied heavily on overtime wages and estimated the ordeal cost him between $12,000 and $15,000 in lost income.
"It was just awful … I didn't want to see friends. I didn't want people to see that immobilizer," Mr. Willis said.
The ministry said they could not comment on Mr. Willis's case due to privacy reasons.
On Tuesday, The Globe and Mail ran a story on the findings of Nizar Shajani, a leading forensic scientist, in an affidavit submitted to the OSMV in June, 2012.
In the affidavit, Mr. Shajani says that police in B.C. should not be using the current devices that administer breath tests because they are prone to human error, specifically in terms of calibration, and cannot differentiate between blood and mouth alcohol.