Several breathalyzer tests which led to arrests on Quebec roads could be invalidated following a judgment rendered Monday by the Court of Quebec. A judge deplored a “laxity” in maintaining the skills of police officers who use the device and opened the door to the disqualification of several of them.
Published at 5:00 a.m.
What you need to know
- A man has just been acquitted because the police officer who gave him the breathalyzer test did not maintain his qualifications regularly enough in the eyes of the judge.
- The trial found that there is little oversight to verify that officers remain current in their expertise with the device.
- The decision opens the door to the disqualification of other police officers who use the breathalyzer.
“This decision potentially has an impact for anyone accused of impaired driving! », exclaimed Me Alexandre Bergevin, the lawyer who successfully led the challenge in this case, leaving the courtroom of the Longueuil courthouse.
According to Me Bergevin, several other defendants could now be in a position to repeat the same arguments that led to his client’s acquittal.
PHOTO IVANOH DEMERS, LA PRESSE ARCHIVES
Lawyer Alexandre Bergevin, in 2016
His client was arrested in the middle of the 2023 New Year’s Day festivities by a Longueuil police officer. After a breathalyzer test (also called a breathalyzer), he was accused of driving with a blood alcohol level equal to or greater than the legal limit of 80 mg of alcohol per 100 ml of blood.
How to assess a driver’s state of intoxication has been the subject of countless legal debates, Supreme Court decisions and legislative adjustments over the decades.
Older people will remember the once famous “two beers defense”, or Carter-type defense: an accused established, for example, that he had consumed “just two small Molsons”, then had an expert testify who detailed that with the driver’s build , it was strictly impossible for two beers to make him reach the blood alcohol level noted by the police officer.
Today, the law indicates that the breathalyzer is considered reliable and benefits from a “presumption of accuracy” if it is used adequately by a “qualified breathalyzer technician” or a “TQE” in the jargon. .
To be recognized as TQE, police officers must complete specific training, then stay up to date by practicing with the device every 90 days and following training on its use each year.
It is on this point that the defense struck in the case, during long procedures which stretched over two years.
A “not simple” role
Me Bergevin proved that the police officer who had administered the breathalyzer test to his client had taken two breaks in recent years, one of six months and the other of four months, during which he had not met the requirement to use the device every 90 days.
He then started using it regularly again and completed online skills maintenance training.
But according to the defense, these two breaks during which the agent stopped using his device regularly should have caused him to lose his qualification as a qualified breathalyzer technician.
The judge agreed with this argument.
The requirement regarding handling of the approved breathalyzer within the last 90 days is intended to ensure that the TQE does not lose control and is ready to act as a TQE quickly in accordance with established procedures.
Judge Jean-Philippe Marcoux, in his decision
The magistrate emphasizes that “the role of the TQE is not simple” and that he must accomplish several tasks, urgently, often without preparation, in order to ensure the reliability of the results obtained when a driver blows into the vehicle. the machine.
The evidence heard by the court revealed that at the Longueuil police, the police officer had been “left to his own devices” regarding maintaining his skills regarding drunk driving. He had to keep a record of his actions himself and did not know whether anyone cross-checked the information within the police force.
The police officer “was never aware of a case where a TQE colleague would have been disqualified or would have had to return his qualification card to possibly be rehabilitated,” notes the judge.
“He confirms that his share register is not transmitted to the National Police Academy of Quebec or any other authority in order to validate his TQE status. Finally, none of his superiors have ever referred him to his share register. In fact, he does not know how he can lose his qualification as a TQE and how this process works,” the judgment continues.
“This tends to demonstrate a form of laxity in the application of [la politique sur la désignation des TQE du ministère de la Sécurité publique] », concludes the judge.
The possibility of an appeal studied
The magistrate therefore considered that reasonable doubt remained about the qualifications of the police officer and he acquitted the accused.
The Director of Criminal and Penal Prosecutions (DPCP) has not yet decided whether he will appeal the decision. The spokesperson for the organization, Me Patricia Johnson, underlines that two contradictory currents are observable within the judiciary concerning the breaches which can call into question the qualifications of a police officer using a breathalyzer.
“We take note of the decision of Judge Marcoux which is part of the jurisprudential trend which does not retain our legal position on the question in dispute. We will take the time required to assess whether it is appropriate for the acquittal to be appealed, taking into account, in particular, the contradictory jurisprudential trends currently developing in the province,” explained the spokesperson.
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