Court rules breathalyzer not enough to suspend drivers who blow under .08

The B.C. Supreme Court has ruled blowing between .05 and .08 for blood alcohol content on an approved breathalyzer isn’t enough to immediately suspend a driver.

In his ruling, Kamloops Justice Dev Dley said that officers must have evidence of impairment beyond a person blowing between .05 and .08 – otherwise known as a WARN reading – to issue a roadside driving prohibition of up to 90 days.

“There is no presumption that a driver’s ability to drive is affected by alcohol solely on the basis of a WARN reading,” he wrote.

Paul Doroshenko, a lawyer with Acumen Law, says the ruling means police will need to see tangible evidence that a person’s driving ability is affected by alcohol.

“Officers are going to have to provide some evidence to the tribunal that could lead to the conclusion that they were affected by alcohol,” he says.

“There are certain symptoms that people can’t mask, even experienced drinkers. Glassy eyes, slurred speech. If you’ve got that, it’s an assumption that your ability to operate a motor vehicle was affected by alcohol.”

This is the latest in a series of court rulings against the provincial government’s drunk driving law. In August, B.C. Supreme Court ruled that the Superintendent’s Report on Approved Screening Devices was inadmissible in an Immediate Roadside Prohibitions review hearing. And in November 2011, they ruled that the original version of the law violated the Charter of Rights and Freedoms, though the government amended the law the next year.

The government first introduced the law in 2010 as a response to the death of Alexa Middelaer, a four-year-old girl struck and killed by a drunk driver two years prior. At the time, the province’s stated goal was to cut down on drunk driving deaths by 35 per cent.

In a statement, Superintendent of Motor Vehicles Sam MacLeod said “Our lawyers are currently reviewing the decision to determine whether or not an appeal would be appropriate or warranted.

“Let me assure you that those who drink and drive continue to be held to account with immediate roadside driving prohibitions, vehicle impoundments and monetary penalties. We will continue to build on the 143 lives saved and the 51 per cent reduction in alcohol-related fatalities we’ve seen since the law came into force.”