How to Challenge Inaccurate Roadside Breath Tests

Thanks so much for joining me today I want to talk about approved screening devices that are used in Canada and the main one that’s used is called an Alco test. What is an Alco test? An Alco test is the screening device that’s used at the roadside. So for example, if the police pull you over, and they suspect you’re impaired, they smell an order of alcohol, or they don’t even need a reason to give you the screening test that can, they can just us pull you over and you’re giving it believe it or not new law, by the way in the last years. So what happens they’ll pull out this device demand that you blow into it, you provide a sample into it, if you blow over 100 milligrams of alcohol.

Or over in that device. By the way, it’s not calibrated at 80, it’s calibrated at 100, the legal limit is only 80 but just a screening test, but they give you the benefit of doubt. So if you blow that are over 100 rover, they’re going to take you downtown for the main test, the intoxilyzer tests, which are, I’ll call them the real breath tests.

If you fail those, your screwed. No I shouldn’t say that, you’re you can potentially defend those too. So how do we defend a case where there’s problems with the alco test? What are possible problems? Well, first of all, defence lawyer doing one of these cases has to be an expert in the alco test you have to know how it’s calibrated. You have to know the maintenance issues. You know, you have to know about user error and how they’re happening It’s very important.

So when I get to disclosure, the officer is going to have to describe these things. So they’re going to talk about how they use it how they set up the calibration.

It has to be calibrated every so many days. Maintenance has to be proper on it. And in the moment it has to be used properly. It’s surprising how many mistakes are made by this and I can recognize them in a case and a DUI lawyer will and I can also recognize it in the middle of a trial when they’re making errors about not describing things properly it’s not set up properly. So if one of those things breaks down, you can challenge it and those results can potentially get thrown out and then they have no grounds to bring them down to a police station and everything gets thrown out. So that’s important. One other issue which arises significant amount of time is what’s called mouth alcohol. So let’s say an officer pulls you over, and he knows that you just came out of a bar for example, well, that could present what’s called mouth alcohol issues. Those tests those devices, if you if you drink, if you have a drink, its going to be mouth alcohol, So if you blow it that device within 15 minutes of your last drink, it’s going to automatically blow over because it’s detected in the mouth alcohol. If the officer knows that and asked you that question or knows you just came over a bar it may present a mouth alcohol case, especially if you testify that you did have a drink in the last 15 minutes or the officer may in fact know that from and It’s surprising the number of officers who don’t wait long enough in these situations and the proper procedure would be to do so that will be a section eight charter application to challenge the search and seizure because the officer knows that mouth alcohol could affect the results.

So these are ways to challenge the approved screen device. It is an accurate device by the way as long as it’s calibrated, maintain property, operated properly and there’s no mouth alcohol. So those are the ways to challenge that test in court in a DUI trial.

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