Drunk driving charges in British Columbia are likely to continue to be battled in court, despite a recent decision from the Supreme Court of Canada, say lawyers familiar with the case.
Canada's highest judicial branch upheld most of B.C.'s drunk driving laws on Friday — police can continue to seize vehicles and suspend licences if a driver fails a breathalyzer test.
The court said drivers can be punished at the roadside if they blow over the limit — but it also said that there has to be a way for drivers to challenge a failed test.
"[The court] was particularly concerned with the fact that the device the police use at the roadside is known to be unreliable," said defence lawyer Shea Coulson.
Earlier this year, RCMP in Tofino and Vernon calibrated their breathalyzers with the wrong gas, according to documents obtained through a freedom of information request. As a result, 51 drivers had their suspensions reversed.
Lawyers worry there could be others who get punished, even though they're not actually impaired.
"You're running a huge risk if you drink and you drive, period. But there is the increased risk here because of unreliable readings," said defence lawyer Paul Doroshenko.
Doroshenko said complicating matters is the fact that the government doesn't make maintenance records for the device readily available, or allow police to be cross-examined.
Saving lives and resources
But the province says automatic penalties save a lot of police resources.
With the new law, officers can process several offenders an hour, unlike before when they would have to take the driver to the station and wait for the case to go to court.
The province's Attorney General, Suzanne Anton, said 260 lives have been saved since B.C. enacted the law; nearly 19,000 drivers get caught each year in B.C.
On the other hand, Doroshenko says B.C. has effectively decriminalized drunk driving.
"This spin that they've had all along that this is the toughest drunk driving law in the country is absolute garbage," said Doroshenko.
"It's actually become an administrative matter ... It's no longer something where you're facing a criminal charge."
Doroshenko says he still wins most of his drunk driving cases under the new law, and he warns people that they can blow a fail if they use mouth wash, or have just one drink.
He advises drivers who think they have wrongly blown a warning to take a few deep breaths and take a second test on a second device, because only the lower of the two readings counts.