An investigation into roadside screening devices used by the Port Moody Police has concluded at least some of them were calibrated incorrectly, meaning people who failed a roadside breath test may not have been over the legal limit.
That conclusion comes nearly a year after allegations first came to light that the PMPD officer responsible for calibrating the approved screening devices (ASD) was doing so incorrectly.
And the Vancouver defence lawyer who raised the issue last October says he may pursue a class-action suit on behalf of his clients.
"The longer we wait for the police in Port Moody to put things right, the more damage people suffer," said Paul Doroshenko. "They should have been mitigating the damage for these people from the beginning."
Doroshenko estimates about 1,000 people were given immediate roadside prohibitions based on readings from the PMPD's roadside screening devices but it's not known yet how many of those were legitimately over the legal alcohol level or if a false reading was given because of a miscalibrated device.
The PMPD's officer in charge of calibrating the breathalyzers wasn't replacing a bottle of solution, designed to simulate the alcohol reading, often enough. The Office of the Superintendent of Motor Vehicles requires the solution to be replaced after 16 tests but in Port Moody, Doroshenko said, it was being used for at least 18 tests and possibly for up to 50 tests.
Under stiff drunk driving regulations introduced in 2010, drivers who blew over the .08 blood alcohol limit faced an automatic 90-day driving suspension and fines, and were required to install an ignition interlock device on their vehicle for one year. Total costs came to about $4,000. Drivers who blew in the warn range (between .05 and .08) received a three-day suspension for a first offence.
But in late 2011, the B.C. Supreme Court declared part of the law unconstitutional and, in June, the provincial government introduced amendments that allow drivers who blow over the .08 limit to challenge the roadside breathalyzer results.
Police are also be required to submit documents on the breathalyzer's calibration.
On Monday, the Office of the Police Complaints Commissioner stated that, following an external investigation, the PMPD Discipline Authority's decision to substantiate the neglect of duty allegation was correct. The OPCC also said the verbal reprimand given to the officer who was miscalibrating the devices was an acceptable punishment.
Another outside agency is now investigating whether it's possible to definitively tie the miscalibrated ASDs to specific roadside prohibitions issued during the affected time period.
Const. Luke van Winkel said once PMPD became aware of the miscalibration allegations, the officer was removed from that role, the department took steps to make sure it was no longer happening and the investigation was launched.
"Hopefully, we can determine if any of the ASDs were properly calibrated during that time," he said of the ongoing investigation.
"At this point we can't comment on what will happen," he added. "We'll have to see how many people were affected and what the nature of that effect was... then we'll see what we can do to remedy the situation."
Doroshenko says everyone who received a driving prohibition based on a roadside breathalyzer test in Port Moody should be notified, have any charges lifted and be fully compensated.
