Approved Screening Devices
Approved Screening Device
Calibration Logs
For many years I have been thinking about ways to challenge approved screening devices “ASD”. In R. v. Black 2011 ABCA 349 I was a able to take a case all the way up to the Alberta Court of Appeal on a very interesting issue. I suggested that I was entitled to copies of calibration logs for the devices. At that time every two weeks the approved screening devices were calibrated before being used in service.
When one examined the logs it appeared that the devices they were using then the Intoxylizer 400D were very unstable. In other words calibration records showed that the devices were sometimes off by as much as 30%. Practically what this meant is that someone with a Blood Alcohol Level of only 70 mg was being arrested because the ASD thought they were 100 mg. This I argued was akin to an arbitrary detention.
The Albert Court of Appeal said that the defence were not always entitled to the logs in a 2:1 decision. The logs were not relevant unless the officer knew the device was faulty. The officer could rather ely on a calibration sticker on the device itself. The exception to this rule was if the calibrator was also the investigating officer. Then the logs were producible.
In any event, shortly after this decision I then argued that if I wasn’t allowed the logs then I was entitled to see the calibration sticker on the ASD. I won a case when this wasn’t provided to me using the Court of Appeal’s reasoning in Black.
Waiting Time
Another very useful decision I came across recently was R. v. Bergen 2014 M.J. No 122. I suggest every impaired driving lawyer have this case handy.
In that case the officer chose to wait 15 minutes before administering the ASD because he saw the Accused pull out a bar and was concerned he may have consumed alcohol within the past 15 minutes. He did not ask the accused and had no specific reason to believe the accused had consumed alcohol within the past fifteen minutes. On appeal the conviction was overturned. If an officer in those circumstances is not required to wait 15 minutes to administer an ASD, when he see’s a person leave a bar, why would he be required to wait 15 minutes without anything more?
This is an excellent decision on law and