VANCOUVER POLICE DEPARTMENT

Transcription

1 VANCOUVER POLICE DEPARTMENT REPORT TO THE VANCOUVER POLICE BOARD REPORT DATE: April 10, 2013 BOARD MEETING DATE: April 16, 2013 BOARD REPORT # 1304C01 Regular TO: FROM: Vancouver Police Board Service and Policy Complaints Committee Chief Constable Jim Chu SUBJECT: Service and Policy Complaint on Approved Screening Device Records RECOMMENDATION: That the Vancouver Police Board Service and Policy Complaints Committee dismiss with reasons the complaint of Mr. Paul Doroshenko dated SUMMARY: On October 10, 2012, Mr. Paul Doroshenko forwarded a formal complaint letter to the Office of the Police Complaints Commissioner alleging Neglect of Duty and Deceit in relation to the Vancouver Police Department (VPD) Approved Screening Device (ASD) records. Mr. Doroshenko is a lawyer who has been examining the ASD practices of police agencies in British Columbia. He made several Freedom of Information and Protection of Privacy Act (FOIPPA) requests for the records pertaining to the calibration of VPD ASDs. He believes he had uncovered deceitful calibration records from the VPD when he noticed the calibration test certificates of different ASDs appear to have all been photocopied from one single calibration test. His concern is that the VPD has not been calibrating every individual ASD as per provincial standards, and has instead just tested one ASD and then made several photocopies of a single successful calibration test to represent the remaining ASDs that were allegedly never tested. Mr. Doroshenko believes that the failure rate for ASDs is much higher than reported by the VPD and he also alleges there is an attempt to conceal the true failure rate by photocopying the successful results of a few instruments. This issue has been explored and it has been determined that the photocopying of the forms was done in an attempt to be time efficient while completing numerous tests and in no way was deceitful. Although the signature block was pre-filled, the certificate was not completed with the serial number until the ASD passed the calibration test. The calibration test result was then handwritten and signed by the VPD s Calibrator on another form called the ASD Accuracy Check Log. A review of these records shows that the VPD ASD testing did comply with provincial standards.

2 The ASD calibration process has continued to evolve provincially and there is now a more efficient record keeping system in place for the ASD calibration records which will make responding to future FOIPPA requests much easier. DISCUSSION: The following information explains the procedures followed to ensure that the ASDs used by the VPD are functioning properly: Who performs ASD accuracy checks and calibration tests? Constable Jeff Schwenneker is the VPD s only qualified ASD Calibrator and has been calibrating the Department s ASDs since November In the past 12 months alone he performed 970 individual calibration tests according to the VPD records mentioned later in this report. He has been with the VPD for over 26 years and during that time has amassed 22 years of experience in traffic duties. In 2006 he also became the VPD s Breath Testing Coordinator and Datamaster Supervisor. Cst. Schwenneker belongs to a number of provincial committees and working groups concerned with traffic safety and more specifically impaired driving investigations. Constable Schwenneker performs all of the ASD calibration tests in his office located at VPD headquarters (2120 Cambie Street). His office is kept locked when he is not present to ensure that he has full control of the testing equipment and record management. How often are the accuracy checks and calibration tests performed? The VPD has a total of 110 active ASDs. Each of these devices must have a calibration test at least every 28 days and to do so Constable Schwenneker divides this large group of 110 into four smaller groups. Each week he performs calibration tests on one of these four smaller groups of ASDs. The purpose of the calibration test performed on an ASD is to ensure it is operating within acceptable parameters and meets expected performance standards. Each ASD has its own records management folder that stores the main ASD Accuracy Check Log as well as every Certificate of Qualified ASD Calibrator that is filled out each time that ASD passes the monthly calibration test. An ASD accuracy check procedure has two parts: 1) a calibration test (performed twice to confirm the check) and, if necessary; 2) a recalibration of the ASD. In most cases the accuracy check will require only the calibration test, but if the ASD requires an adjustment then the recalibration procedure must be performed followed by a second calibration test. ASDs may not require recalibrating for months at a time. How often are ASDs inspected and how are they identified? Once every 12 months all ASDs are sent to an authorized repair depot for a diagnostic inspection. All repairs (other than battery replacement) must be conducted by authorized repair technicians. All repairs and annual maintenance to ASDs in British Columbia are performed at DAVTECH Analytical Services in Ottawa. Each ASD has its own unique manufacturer s serial number and is marked by the VPD with its own VPD asset number so that all maintenance, repair, and calibration can be tracked for each ASD. DAVTECH also places a sticker on the ASD which includes the serial number along with the expiry date of the current annual inspection. Each ASD is stored in its own hard plastic 2

3 impact-resistant case supplied by the manufacturer and is stored at the VPD Motor Pool Kiosk for distribution among the police officers. Cst. Schwenneker also places a label on each ASD after it has passed the 28 day provincial standard calibration test. This label lists the 4 week expiry date as a reminder to have its calibration tested. Motor-pool Kiosk staff check the expiry dates of each ASD before they distribute them to on-duty police officers. If the label on the ASD shows that the instrument is past due for a calibration test it is put aside to be sent to Cst. Schwenneker s office for its 28 day calibration test. The police officer signing out the ASD, also checks the expiry date of the ASD before leaving the kiosk to make sure it is not expired. What happens if an ASD begins to malfunction after an officer has signed it out? During the course of duty if the police officer determines the ASD is not functioning properly the ASD is not used for testing. The non-functioning ASD is then returned to the Motor-pool Kiosk and marked so that it is placed out of circulation and sent to Cst. Schwenneker s office for examination. Cst. Schwenneker will examine the instrument and determine if it can be placed back into the ASD pool or has to be sent to DAVTECH for servicing. The results of the test(s) in his office, as are all tests, are recorded in that particular ASD s Accuracy Check Log. If the ASD is taken out of service for repairs, Cst. Schwenneker faxes a report to the Office of the Superintendent of Motor Vehicles advising them of the repair to that particular ASD identified by serial number so they can determine if the ASD was involved in any impaired driving investigations since the last monthly calibration test. What is involved in a calibration test? As previously mentioned each week Cst. Schwenneker tests a number of ASDs inside his office. He has followed the testing procedure directed by provincial standards since 2006 when he first started as the ASD Calibrator. He releases a quantity of a known dry gas standard into each ASD one at a time and records the reading. The dry gas standard is a quantity of alcohol in a nitrogen gas contained in an aluminium tank under pressure. This dry gas standard is scientifically regulated and purchased from DAVTECH Analytical Services in Ottawa. He performs two consecutive dry gas tests with the ASD and compares the dry gas reading with the known dry gas reading of the pressurized testing tank. This report only summarizes the testing procedure and does not discuss other testing details such as checking the temperature of the room, the operating temperature of the ASD, the barometric pressure of the room, etc. There are 3 results that can occur as a result of the calibration test: 1. If the two dry gas test results are within plus or minus 5 milligram percentage (mg%) of the known dry gas standard then the ASD has passed the calibration test. Cst. Schwenneker then completes the Certificate of Qualified ASD Calibrator and also records the test readings on the ASD Accuracy Check Log. Both forms are placed in that ASD s corresponding folder. 2. If the two dry gas test results of the initial testing are between plus or minus 6 mg% and plus or minus 12 mg% of the known dry gas target value then the ASD has to be recalibrated. This result does not happen often. In the past 12 months there were 970 ASD calibration tests and an ASD had to be recalibrated in only 13 (1.3%) of the tests. All 13 ASDs passed a second calibration check with the dry gas standard and were returned to the ASD pool. 3

4 In these cases, Cst. Schwenneker recalibrated the ASD using a wet bath alcohol standard. After the ASD is recalibrated he then tested the same ASD with the dry gas standard again. If the two test results were within 5 mg% of the dry gas standard, the ASD has passed the calibration test and it was placed back into the pool of available ASDs. In such cases Cst. Schwenneker completed the second portion of the Certificate of Qualified ASD Calibrator mentioning that the ASD had to be recalibrated with the wet bath standard and then given another calibration test with the dry gas standard. All of these test readings were recorded in that particular ASD s Accuracy Check Log. 3. If during the initial dry gas testing, the results are greater than 12 mg% of the target value, then the ASD is taken out of service and sent to DAVTECH in Ottawa for repair. The Calibrator will immediately fax an Immediate Roadside Prohibition Police Supplemental Report to the Office of the Superintendent of Motor Vehicles if the test result is 12 mg% higher than the True-cal target value during the dry gas testing. The Superintendent of Motor Vehicles then determines if that particular ASD had been used in the past 28 days for any impaired driving investigations where that instrument could have been reading too high and adversely affected the police investigation. In the past 12 months, 5 ASDs (.5%) were removed from service and sent to DAVTECH for repair. Once Constable Schwenneker is satisfied the ASD passed the initial calibration check then he completes the Certificate of Qualified ASD Calibrator. The hard copy form of the Certificate was adopted provincially in May 2012 and as of November 2012 there is now an electronic copy of the same form which can be completed on the computer. It should be mentioned that the Certificate records either (a) if the ASD passed the calibration test or (b) had to be re-calibrated by Constable Schwenneker and then passed the second set of calibration tests. This document does not record the actual test readings. The individual test results are recorded on the ASD Accuracy Check Log. Were documents pre-filled and photocopied and, if so, for what purpose? Between May 2012 and October 2012 Cst. Schwenneker was photocopying a portion of the Certificate of Qualified ASD Calibrator in order to be more efficient. At the start of his calibration testing day Cst. Schwenneker would fill in one Certificate with his name, date of test, future expiry date, signature, and he would also complete the first section mentioning the Air Gas standard. He would then make a number of photocopies corresponding to the number of ASD units that had to be tested on that date. As he tested each ASD, and only if it passed the calibration check, he would complete the rest of the certificate by filling in the ASD serial number and the ASD Service Expiry date. The Certificate would now be complete and placed in the folder for that particular ASD. He would then handwrite the test result details on the ASD Accuracy Check Log. In his complaint, Mr. Doroshenko has included 22 Certificates of a Qualified ASD Calibrator he obtained from the VPD after an FOI request. He summits that all Certificates from a given test date are identical photocopies except for the two boxes at the top of the certificates that include the individual ASD serial number and the ASD Service Expiry date. Each Certificate has been individually marked with its own identifying serial number. The following is a quote from his complaint: 4

5 On September 6, 2012, I was reviewing Certificates of Qualified ASD Calibrator from the Vancouver Police Department, in connection with a particular client s file. There were, as is common, two Certificates of Qualified ASD Calibrator in the disclosure. Each Certificate purported to pertain to a different device. These records were produced by the Vancouver Police Department. As I reviewed the records I noticed that, despite the fact that the serial number was different on the two documents, the written portion of the document appeared identical, including the signature. I held the Certificates up against the light to compare them and determined that they were indeed identical. As I inspected the document, it became clear to me that the officer in charge of calibration, that is, Constable J. Schwenneker, had filled in, dated and signed the form. However, the boxes for the device s serial number and service expiry date had been left blank. I pulled all records in my possession from the Vancouver Police Department and it became readily apparent to me that the incomplete documents were being photocopied, and the serial number and service expiry date portions were left to be filled in after the fact. I attach copies of the records that confirm my suspicions. The form records no information pertaining to who recorded the serial number or service expiry date. Mr. Doroshenko is correct that most of the contents of the Certificates were prefilled, by photocopying, yet he is incorrect in his assumptions and conclusions (see below) that every ASD was not individually accounted for and properly tested: The fact that the Vancouver Police Department is creating a photocopy with the serial number and service expiry filled in at some other time raises a serious concern that the officer in charge of calibration is attempting to mislead an administrative tribunal. By producing this document, the officer is suggesting that he has checked each device for calibration and found to be within the recommended limits. However, the information contained in the document is the information from only one calibration check. It is the information and results stemming from one test of calibration. This information is being reproduced and provided again for multiple units. The Certificate of Qualified ASD Calibrator is a document that is required to be filled out by the officer in charge of calibration. A recent inquiry made to the Central Saanich Police Department revealed to me that these Certificates are now the standard accepted practice for all police departments and RCMP detachments in British Columbia. It is submitted as part of the evidence package in an Immediate Roadside Prohibition hearing for the purpose of demonstrating that the device was checked for calibration and found to be within recommended limits, or that it required recalibration, after which it was found to be within recommended limits. It is evidence. It is, therefore, an official record. This is a circumstance that warrants investigation and correction. The statement contained in these documents purports to relate to the calibration check of a particular device, but the evidence clearly establishes that is pertains in fact to the calibration of only one device. There is no way for a judicial or quasi-judicial body to determine which device was checked and which test information has been recorded. The practice of photocopying appears designed to mislead a tribunal into accepting evidence that is, in fact, inaccurate. Cst. Schwenneker s name and identification are clearly marked on each Certificate submitted by Mr. Doroshenko. Constable Schwenneker is the only person in the VPD that has calibrated these ASDs since In order to re-emphasize the key finding with regard to this aspect of the complaint: Cst. Schwenneker confirmed that he did prefill the Certificates between May and October He would fill in one certificate on the day of the test and would leave the serial number box and the service expiry date box blank. He would then photocopy a number of Certificates corresponding to the number of ASDs he was testing on that day. He would not prefill Certificates for dates he was testing in the future. 5

6 Only if the ASD passed the initial dry gas standard test would he complete the form by filling in the serial number and service expiry date. The Certificate is not complete until all required fields are filled in. The only way of differentiating one Certificate from another is the identification of the ASD s serial number which is located on the top right of the page. Cst. Schwenneker would place this completed Certificate into the folder that belonged to that particular ASD. He would then write all of the test results on that ASD s Accuracy Check Log sheet and sign the entry. If the ASD did not pass the initial dry gas standard test, and had to be re-calibrated, then Cst. Schwenneker would complete an entire new Certificate rather than use a pre-filled Certificate. The Certificates submitted by Mr. Doroshenko have been arranged in the order they arrived in the complaint and they date from June 2012 to August Mr. Doroshenko believes that because portions of the Certificates were prefilled by photocopying then not every ASD was individually tested by Cst. Schwenneker. Every ASD owned by the VPD has been assigned its own file folder. Inside the file folder are two types of forms. The first is the ASD Accuracy Check Log that details the dates and test results of every calibration check, recalibration, and service repair. The second form is the Certificate of Qualified ASD Operator (Certificate) that is completed each time an ASD passes its monthly calibration check. The Certificate itself has limited information. It only records that the ASD passed the calibration during the first test phase, or had to be re-calibrated first, before passing the calibration standards during the second test phase. The date of the test and the 28- day expiry date are also included. Naturally all ASDs tested on one date would have the same 28-day expiry date next time they were required for testing. The following shows that all 22 examples of ASD calibrations that Mr. Doroshenko submitted passed the initial calibration check. None of them needed to be recalibrated or repaired at that time: TABLE REPRESENTING 22 ASD CALIBRATOR CERTIFICATES submitted by Mr. Doroshenko. On the left side of the table is a list of 22 calibration certificates submitted by Mr. Doroshenko. On the highlighted right side of the table are the corresponding test results from that particular test date obtained from the ASD Accuracy Check Log sheets. Data from the Certificates submitted by Mr. Doroshenko Data from the corresponding ASD Accuracy Check Log for each instrument # Calibration Date Serial # Service True Cal Calibration True Cal Calibration Expiry expected Check expected Check Value Value 1 August 21, August 21, August 21, August 21, August 07, August 07, August 07, July 31,

7 9 July 31, July 24, July 24, July 24, July 03, July 03, June 26, June 26, June 12, June 12, June 12, June 12, June 12, June 12, The expected value of these instruments was 100 mgs. All of the test results were within the plus or minus 5mg% parameter. Cst. Schwenneker has handwritten every entry into the ASD Accuracy Check log. None of the entries have been pre-filled. He has personally signed every entry at the end of each submission. What is the current accuracy of the VPD s ASDs? As previously mentioned, during the investigation of this complaint, the accuracy of the 110 ASDs maintained by the VPD was reviewed by examining the records from each of the ASD Accuracy Check logs. Between May 2012 and April 2013 there were a total of 970 calibration tests performed and during that time only 13 ASDs (1.3%) had to be re-calibrated before passing a second calibration check. Only 5 ASDs did not pass the calibration test and were removed from service and sent to DAVTECH. The supporting data can be reviewed in Appendix A. CONCLUSION: The records kept in the Traffic Services Section by Cst. Schwenneker show that the ASD testing has been done in compliance with provincial standards. The Certificates for each ASD, while partially photocopied, were still completed individually by filling in the unique serial number of the ASD only after the successful completion of the calibration test for that specific ASD. The details of the calibration tests recorded on the ASD Accuracy Check Log supports this fact. Therefore, the VPD has been correctly calibrating all of their ASDs and has maintained the necessary documentation. It is for this reason that the VPD recommends that this complaint be dismissed with reasons. 7

8 Author: Cst. Gerry Wickstead Telephone: Date: April 12, 2013 Submitting Executive Member: DCC Warren Lemcke Date: April 15, 2013 (signature) 8

9 Appendix A ASD Accuracy Check Log History of ALL 110 ASDs in the Vancouver Police Department Tested: May 2012 to April 2013 Source: All ASD Accuracy Check Logs from VPD ASD Calibrator Cst. Jeff Schwenneker HIGHLIGHTS: 970 total Calibration Checks 13 re-calibrated and returned to the pool (1.3%) 5 instruments sent to DAVTECH for repairs (does not include those sent to DAVTECH for annual service) After 970 calibration checks 5of the ASDs tested did not meet calibration standards and were taken out of the distribution pool and sent to DAVTECH for repair. The Office of the Superintendent of Motor Vehicles was faxed immediately on the test date whenever an ASD did not meet calibration standards. VPD ASD # Serial Number Calibration Checks Recalibration Test Sent to Davtech for repair (Does not include annual inspection) Sept 25/12 red button broken Taxi detail Used for educational purposes inactive sent for service

10 sent for service sent for service Temp too high sent for service ASDs 970 calibration checks 13 re-calibrated and returned to pool 5 sent for repair to DAVTECH (does not include units sent to DAVTECH for annual inspection) 10