Under the Motor Vehicle Act of British Columbia drivers have the right to request a second breath sample if a “warn” or “fail” results from the first screening.
Right to second analysis
- If an analysis of the breath of a person by means of an approved screening device under section 215.41 (3.1) registers a warn or a fail,
- the person has a right to forthwith request and be provided with a second analysis, and
- a peace officer must inform the person of that right before the peace officer serves on the person a notice of driving prohibition.
- A second analysis performed under this section must be performed with a different approved screening device than was used in the first analysis.
- If a person provides a sample of breath for a second analysis in accordance with this section, the lower of the first and second analysis results governs for the purposes of section 215.41 (3.1).
A recent case was conducted for a client who had consumed an alcoholic beverage minutes before leaving his friend`s home, he had one drink the entire evening. The client was pulled over by police two minutes after he began driving.
The officer asked if the driver had consumed alcohol. He answered in the affirmative and stated that he had just finished a drink before leaving. By this time, only four minutes had passed since the time of the last drink of alcohol and the interaction with the officer. The officer demanded that he provide a sample of his breath into an approved screening device (ASD). The client followed the demand. An officer is supposed to wait at least 15 minutes from the time that a person last consumed alcohol before administering an ASD test. This did not happen.
The client failed his first ASD test and was advised of his right to a second ASD. The officer called for another officer to attend with a second ASD. The two tests must be completed on separate devices with new mouth pieces. No officer could attend.
The officer alleged in the narrative that the client declined his right to a second test. The narrative also confirmed that no second ASD test could be located and brought to the scene. The client was issued an Immediate Roadside Prohibition.
The Immediate Roadside Prohibition was appealed. Based on submissions, the appeal was permitted and the prohibition was revoked on two grounds:
- The officer did not wait the requisite 15 minutes after being advised that the client had just consumed his last drink; and
- The client was not provided with his right to a second analysis.
If you are served with an Immediate Roadside Prohibition, you have seven (7) days to appeal. Contact one of the lawyers in our Dispute Resolution group if you are in need of assistance.
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.
This article was written by a lawyer formerly with Lindsay Kenney LLP.