Questioning the Accuracy of a Breath Test After a DUI Charge in Canada

If you have been pulled over for suspected drunk driving in Canada, you should know that police officers have to follow specific procedures when making an arrest and gathering evidence. One of these is administering an approved roadside screening test, also known as a breathalyzer.

If you fail a roadside screening device test, you will be arrested and brought to the police station for an advanced computerized screening test known as an Intoxilyzer. If you fail either screening test, you should contact an experienced DUI attorney as soon as possible to challenge the results.

Ways to Challenge Breathalyzer or Intoxilyzer Results in a DUI Case

As breath test instruments and their operators can make mistakes, Canadian citizens have the right to dispute the application and accuracy of these instruments in court. In order to do so, your lawyer must provide evidence to show that the instrument malfunctioned, the breath technician did not use the instrument correctly, or the police did not have the right to obtain these results.

Challenging breathalyzer or Intoxilyzer results may involve:

• Reasonable and probable grounds. Reasonable and probable grounds is the standard a police officer must meet in order to make a lawful arrest. Sufficient grounds to arrest a person for impaired driving can include poor driving such as weaving on the roadway, coupled with slurred speech, or lack of coordination and balance. More subtle cues, such as a smell of alcohol in the car or bloodshot eyes, are by themselves not considered to be sufficient reasonable and probable grounds to arrest a person for impaired driving in the absence of failing a roadside screening device test. If the legal standard for the traffic stop or arrest hasn’t been met, any breath samples collected afterward may be excluded from evidence under s.24(2) of the Canadian Charter of Rights and Freedoms.
• The right to counsel. All Canadian citizens have the right to speak to a lawyer before providing Intoxilyzer breath samples. In some narrow cases, you may even have the right to speak to a lawyer before providing a breath sample into an approved roadside screening device. However, in all situations, you have the absolute right to receive legal advice from a lawyer before providing the computerized breath tests at the police station. Your right to counsel also has specific provisions, such as the right to counsel of choice and the right to speak to counsel in private. Many DUI cases are won as a result of breaches of the right to counsel.
• Observation period. The breath technician is required to keep the driver under constant observation for 15-20 minutes prior to administering each breath test to ensure the accuracy of the results. During this time, the technician should ensure that there is nothing in the subject’s mouth (such as food, gum, tobacco, or other substances) and that the subject does not drink fluids or take anything by mouth. There should also be no belching or regurgitation of stomach contents during the observation period.
• Technician error. Breathalyzers or Intoxilyzers must be prepared by a qualified breath technician who has been trained to operate the instrument. Only when the breath technician operates the instrument correctly can a Proper Breath Test (PBT) be obtained. In most cases, a PBT requires three things: two suitable breath samples which read within 20 mg of each other, two passing diagnostic tests, and two alcohol standard tests within 10% of the target value. If a mistake is made while setting up and calibrating the instrument and collecting breath samples, the blood alcohol concentration readings may not be accurate or reliable.
• Technical malfunction. In a 2014 case, a judge dismissed charges of DUI after a scientific expert gave evidence that a common Intoxilyzer installed in many police stations was inherently flawed. According to testimony, the black box in the Intoxilyzer 8000C showed a number of problems, including low calibration checks, failed diagnostic tests, and a history of unusual or aberrant results.

Don’t Plead Guilty Without Knowing Your Rights

If you have been charged with DUI in Ontario, don’t give up and automatically enter a guilty plea. Kruse Law Firm can help you avoid a conviction and minimize the effects of a criminal charge on your life. Contact us today to set up your free case review.