Police should modify their 15 minute ASD observation protocol
During my tutorials in Ottawa, a number of local defence lawyers had an opportunity for hands-on experience with screening devices and approved instruments. In particular, some of them wanted to test the scientific rule that a 15 minute observation period is required prior to either a screening device test or an evidentiary breath test. Whether or not such a waiting period is scientifically required has a major impact on reliability of the screening device used to assist in forming reasonable and probable grounds for arrest on an over 80 and indirectly on right to counsel at roadside. The Supreme Court of Canada carefully considered these issues in R. v. Bernshaw .
In Ontario, some police seem to think that the rule only applies to alcohol being deliberately placed into the mouth through consumption of an alcoholic beverage 15 minutes prior to the blow. This simple experiment suggests that mouth alcohol is a very serious problem that can affect the reliability of a screening device (SD) in any case where food or some other object has been placed into the mouth a short time prior to the blow. I am amazed how often individuals are stopped during a RIDE programme immediately after they exit a fast food restaurant.
The lawyers, who participated last week in Ottawa, were very surprised to find out just how easy it is to blow a false positive on a screening device or an approved instrument. Most screening devices do not have mouth alcohol detection systems. Mouth alcohol can be present from a number of sources including food that is fermenting in the mouth. The effect depends on the food - starchy foods are a serious problem. The effect also depends on the the individual.
The SD reading displayed in the attached image was obtained after a lawyer had placed bread into her mouth and chewed until the bread was mushy and sugary. She had a true BAC of 0 mg / 100 mls. The screening device indicated a BAC of 55 mg /100 mls, enough to result in a "Warn" range suspension in Ontario.
A few days earlier and before leaving for Ottawa I decided to change the battery in this screening device. After doing so I decided to test it. I had zero BAC yet blew 6 mg / 100 mls and 7 mg / 100 mls. I had consumed an apple 45 minutes earlier. If this phenomenon had occured with a novice driver or a driver under age 21 they would have received a suspension and other nasty consequences.
The bread phenomenon is explored using a PBT (preliminary breath test instrument) at Justin McShane's Youtube channel.
The best solution is for police to follow the international scientific literature on the subject: no breath test of any kind unless there has been a clear, carefully-conducted, and documented 15 minute or 20 minute observation of the subject, including inspection of the mouth for foreign objects. The presence of gum, vomit, belch, burp, or candy should shut down the 15 minute period causing the officer to start over. Officers need to make inquiries about food recently in the mouth.
Perhaps it is time for the Supreme Court of Canada to revisit its ruling in Bernshaw. Perhaps individuals should be required to be detained an extra 15 minutes at roadside. Perhaps provision for cell phone right to counsel should be afforded at roadside so that individuals can ask their own lawyers or duty counsel about food, gum, and candy mouth alcohol effect as well as usual pre-blow inquiries in the available time. Since POA consequences for a Novice driver or under 21 driver are severe, the right to counsel at roadside should be revisited.
It should be noted that the particular screening device model used in this experiment, the Intoxilyzer SD5, is NOT an "approved screening device" in Canada, although it is manufactured by the same company that builds the 8000C approved instrument. The particular screening device used in this experiment was also in need of proper re-calibration due to extensive use.
Police and other lawyers are encouraged to attempt to replicate these experiments on other screening devices and approved instruments.