Posted November 4, 2016
The issue of mouth alcohol can sometimes play a large role in IRP reviews and one wonders if one simple precaution taken by police when issuing an IRP could reduce potential problems. It is common knowledge that recent drinking can leave traces of alcohol in the mouth that can then contaminate a breath sample and falsely increase the apparent test result. Police are trained to ask the driver when they last consumed alcohol and depending on the answer may delay the test up to 15 minutes to allow the mouth alcohol to be eliminated. The problem arises when drivers are not advised of the reason why this question is being asked and give off-the-cuff answers that may have disastrous consequences for themselves.
After receiving the IRP and then consulting legal counsel, or perhaps researching information on the internet, the driver may learn–too late–of the mouth alcohol effect. This, they think, explains why they got a FAIL test when they felt just fine to drive. They must have been wrong about the time they finished their last drink; after all, they didn’t want to appear foolish to the officer by admitting they drank alcohol just before driving the vehicle. So perhaps they overestimated the time, because they didn’t know how important the estimate could be; after all is 5 or 10 minutes really important?
It turns out it can be.
So the driver, or his counsel, makes a submission to the IRP review providing a different time of last drink, leading to conflicting evidence at the IRP review.
The IRP adjudicator will read the police narrative which will show the driver indicated the last drink was at least 15 minutes before the ASD test. And, then the adjudicator will read the evidence the driver submitted for the review which says something different. Often the adjudicator will disbelieve the post-IRP evidence of the driver in favour of the statements taken in evidence when the IRP was issued. Several IRP adjudications have been appealed to BC Supreme Court over these very issues and the court has sometimes ordered a re-hearing (Gillies, McConachie (though this was overturned at the BC Court of Appeal), Brown) and sometimes upheld the IRP (Gourley).
The confusion over the timing of the last drink could be eliminated if officers simply informed the driver at the roadside why the time of the last drink is important to ensure the ASD test is accurate. Many of the police officers who worked with me as ASD instructors made this point when training new ASD operators but, regrettably, I still see many police narratives where this critical information has not been given to the driver at the roadside. Until this becomes a routine part of the roadside conversation, the problems over the timing of the last drink will continue.