Breathalyser class action
Harper Grey LLP Lawyers: Michael Thomas

A class action lawsuit, challenging roadside breathlyzer results, is being expanded.

The lawsuit, which still needs court approval to proceed, argues that the breathlyzers were not calibrated properly, so they showed a warning level when the driver should have passed.

The devices were pulled and re-calibrated last November, but the expanded lawsuit now claims the changes made still don't comply with the law.

Since the fall of 2010 B.C. has had some of the toughest drinking and driving laws in the country.

Since they were introduced anyone who blows .05, a warning, can suffer automatic penalties - three-day driving prohibitions, about 600 dollars in fines, vehicle impoundment, and a record, but a lawyer says thousands of British Columbians may have been wrongly penalized.

"Everyone that has actually blown a 'warn' on the breathlyzer, there is a possibility that their blood alcohol level was actually less than .05," said Michael Thomas, a lawyer with Harper Grey LLP.

A potential class action lawsuit was filed months after police announced in 2010 that more than 2,000 roadside breathalyzers in B.C. had to be recalled so they could be properly calibrated.

Though one error in the device was fixed, lawyers now say a second error, one that allows for mistakes made when converting blood/air ratios to blood/alcohol levels was not corrected.

And more than 8,000 British Columbians who blew 'warns' could now be entitled to compensation.

"We have no problem with legislation and we support it," said Thomas. "People who drink responsibility could be caught with a 'warn' and we just don't think that's fair."

Thomas said the penalties incurred for blowing .05 can be damaging far beyond any financial costs incurred.

"You have a prohibition on your record saying that you drove a vehicle, essentially when you shouldn't have been," said Thomas. "And that sticks on your record and can affect both your reputation and potentially your ability to get insurance, and it just strikes me as being wrong."

Minister of Justice Shirley Bond would not comment on the issue because it is before the courts.

The BC Association of Chiefs of Police could not be reached before deadline. The law firm Harper Grey is asking anyone who may be affected to contact them through their website.

A hearing to certify a class action lawsuit is scheduled for October.