June 13, 2017
In my last blog post, I provided a great resource so drivers can prepare their own affidavits for submission to an IRP hearing. This time I’ll go through some of the steps to creating the content of an affidavit.
Let’s say a driver with a Fail IRP contacts me and says the ASD tests must be wrong. They describe their pattern of drinking, I do a calculation and, sure enough, the BAC (Blood Alcohol Concentration) is way under the Fail level. They ask me to provide a report with this calculation so they can give it to the adjudicator as evidence the ASD test was wrong.
But, as well as submitting my technical report, the driver will need to submit an affidavit describing their drinking and the other information I need to do the calculation. For a technical calculation such as this, I need to know the driver’s gender, body weight, time the drinking started and finished, what alcohol was consumed, and how much was consumed. That’s the minimum information the driver must put into the affidavit so I can calculate the BAC.
This sounds easy to do, but there can be some pitfalls. Affidavits are special documents that have your sworn or affirmed evidence. You provide facts you know to be true, but you shouldn’t be reporting facts from other people (or at least they won’t be given much weight), and you shouldn’t be reporting your opinions or conclusions.
You also must be accurate and precise. For example, there is a difference between saying you consumed 2 bottles of beer, or you consumed 2 cans of beer. There isn’t a big difference in volume. But when you say cans in one paragraph and bottles in another, the adjudicator will question your ability to accurately recall those events. Also, it is better to say the drinking started at approximately 9 pm, unless you can be sure it started at exactly 9:00 (and how many of us could be sure of that?). You probably know exactly how many bottles of beer you had, but would you know exactly how many ounces of wine you had? Do you know your exact body weight? You get the idea.
Is there a reason you can recall how much alcohol you had? Did you share a 6-pack with a friend? Can this friend can provide an affidavit to confirm your evidence? Do you have receipts from the bar? Can you count up the empties? If a friend poured your drinks, maybe you can ask them for an affidavit. Can you describe the brand of the beverage? Coors Light? Molson Canadian? Do you always drink the same kind of beverage? More detail is always better (after all, the drinking was only a few days ago) because it shows you have a clear memory of events while you were drinking.
Here is some excellent advice for preparing affidavits taken from a guide posted at the Supreme Court of BC website. (See resources at the end of the blog post.)
Ensure the affidavit is internally consistent:
Times are very important in IRP documents and you need to ensure your times are consistent and make sense. If your drinking ends at 9 pm in one paragraph and ends at 5 minutes after 9 pm in another, that is not consistent. Inconsistencies will cast some doubt on your ability to correctly recall the events in question.
Ensure the affidavit is externally consistent:
Is it consistent with other documents? For instance, police will often ask a driver how much they drank and when they finished drinking. These answers are recorded in the IRP documents. Is the information you give in your affidavit consistent with these statements to the officer? If not, can you explain why not?
Ensure the affidavit is not biased:
Are your statements biased? For instance, if you say the officer was rude to you is that because he was actually rude, or was this feeling generated because you were facing an unpleasant situation? It is better to describe what was said that made you feel the officer was rude, rather than say he was rude. State the facts rather than your opinion.
Use your ordinary language:
There is no need to use legal language or more complicated words than you would normally use. Avoid using unfamiliar terms or words and make sure your spelling and grammar are correct. You want to convey a sense of competency and accuracy.
The adjudicator is going to be examining your affidavit very carefully, word by word. Take some time to prepare it, maybe several days. Ask a friend to check it over to ensure it makes sense and is easy to understand.
Your affidavit is critical. Your IRP won’t be revoked if the adjudicator doesn’t believe it.