Court Upholds Drunk Driving Law
In a ruling released November 2, 2012, the court upheld the 2008 requirement that to raise a reasonable doubt about whether you are guilty of having an excessive blood alcohol level as shown by your readings on the breath instrument you must produce evidence of instrument malfunction or operator error.
Onus shifts to Crown
At the same time, the court made it easier to challenge the reliability of breath test results by removing the two other requirements introduced in 2008, finding they violated the right to a fair trial by making an accused prove innocence. The accused no longer has to show that the malfunction or error was of a magnitude that the breath readings exceeded the legal limit of 80 mg of alcohol in 100 ml of blood. The court shifted the onus: now the Crown must show that in spite of the deficiency, the accused would still have been over the limit at the time of the alleged offence.
Drinking evidence not necessary
Further, once the accused has pointed to a malfunction or operator error that is serious enough to raise a reasonable doubt about the accuracy of the breath readings, he or she no longer has to testify as to alcohol consumption that would have resulted in a blood alcohol level within the legal limit at the time of the alleged offence.
Once a deficiency is shown by the accused, the court held, the Crown loses the benefit of the legal presumptions that the breath test results are accurate and that the breath tests, though conducted after driving or care or control has ceased, show the blood alcohol concentration of the accused at the time of the alleged offence.
But drinking evidence may help
It may be useful for an accused to give drinking evidence where he or she has rebutted the presumptions by evidence of a deficiency and the Crown is trying to show that despite the deficiency, the accused would still have been over the limit at the time of the alleged offence.
‘Last Drink’ Defence
An accused, the court held, must still provide evidence of his or her alcohol consumption to establish a “last drink” defence. Under this defence, an accused does not dispute the breath readings but argues that because alcohol was consumed just before or after being stopped by police, the alcohol, accurately reflected by the breath readings, was not fully absorbed into the blood when he or she was behind the wheel.
The court affirmed that an accused who raises this defence must lead evidence showing (1) that his or her drinking just before the time of the alleged offence was such that the alcohol would not all have entered the blood by that time and that he or she was within the legal limit, and (2), that the alcohol consumed is consistent with the blood alcohol readings registered by the breath instrument.
First test outside two hours
If the first breath test was taken more than two hours after the time of the alleged driving or care or control, evidence about what you had to drink and when could raise a reasonable doubt about the reliability of the breath test results if it shows that your blood alcohol level at that time was within the legal limit.