Crown has ‘simple fix’ for breathalyzer maintenance record problem

The Alberta RCMP says a breathalyzer maintenance record problem that derailed a number of drunk driving cases has been resolved with a “simple fix.”

The Alberta RCMP says a breathalyzer maintenance record problem that derailed a number of drunk driving cases has been resolved with a “simple fix.”

Last week, the Alberta Crown Prosecution Service (ACPS) began withdrawing some .08 charges. This is only happening on cases that have reached the trial stage and only in RCMP jurisdictions.

As of Friday, 17 of the .08 charges have been withdrawn, Peter Teasdale, acting Assistant Deputy Minister for ACPS, said in a statement provided to the Advocate on Monday.

In two of these cases, impaired charges continue to be prosecuted. None of the 17 cases are in Red Deer area.

“In most cases of alleged drunk driving, individuals are charged with both driving over .08 and impaired driving. Impaired driving charges will continue to be prosecuted as long as a reasonable likelihood of conviction remains. These charge withdrawals are only in areas of RCMP jurisdiction — due to disclosure issues regarding the maintenance records of the devices,” Teasdale said.

The problem originated when a drunk driving case was tossed after an appeal because maintenance records of the breathalyzer weren’t provided to the defence. Historically they hadn’t been. Such records simply show the service history of the instrument.

RCMP Inspec. Gibson Glavin, officer in charge of strategic communications for the RCMP in Alberta, said Monday the RCMP has always disclosed operational information on the devices, which are tested before and after they are used on a subject.

“That’s not what’s at issue.”

“What we’re looking at is the disclosure of documents that we’ve never disclosed in the past, because it was believed they (the maintenance records) weren’t required,” Glavin said.

Those maintenance records were previously kept by a company called Davtech that maintains the machines for the RCMP.

About a month ago, the RCMP started taking possession of the breathalyzer maintenance records.

“It wasn’t a complicated fix once we knew what the issue was.

“They (Davtech) were at no fault or issue in this matter at all.”

The RCMP has been able to recover more than 90 per cent of the records wanted for disclosure and held by Davtech, Glavin said.

They are either still trying to locate the remainder or they were unable to find them, he said.

It is up to the Crown to decide whether to proceed on cases where maintenance records are not available, he said,

“We’re not in control of staying charges or even if something proceeds to trial.

“We view anything that might affect a fair trial and accused to mount an appropriate defence as being critically important. I can’t think of many things that are more important than that,” Glavin said.

Red Deer lawyer Kevin Sproule said the past few months the Crown has stayed some .08 charges he has been working on without being explicit that there was a problem with producing maintenance records.

“I’ve got a couple set for trial right now.” He was looking forward to hearing from the Crown about whether the cases would proceed.

Lawyer Alan Pearse said there are three main charges considered when it comes to drunk driving.

One is impaired driving, one is .08 and the other is refusal to blow into a breathalyzer.

The maintenance records issue only affects the .08 charge where it is the main evidence being used.

“Someone who is very, very intoxicated and looks very, very intoxicated, this won’t affect them.”

Pearse does nothing but drunk driving cases and said he has a substantial case load in Red Deer.

He has had some cases involving .08 charges withdrawn but does not know why the Crown did so. None of them involved fatalities.

“In Red Deer, the Crown prosecutor has been very ethical on this. They haven’t been litigating bad cases if it isn’t there. In many cases they will simply do the legally correct thing,” Pearse said.

“They’re convicting a guy based on a machine and they should be able to prove the machine works. These are criminal charges. People go to jail over it. You get a criminal record, you have problems going to the U.S. You can’t get jobs. These fun kind of things.”

barr@bprda.wpengine.com

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