How Impaired Driving Charges Are Defended | Criminal Defence Articles by Tushar K. Pain

You’re pulled over by the R.I.D.E. program.  The officer smells alcohol on your breath and administers a roadside screening device test, which you fail.  You’re taken to the police station where a breathalyzer test is conducted.  Your readings are over 80 (that is, over the legal limit of 80 milligrams in 100 millilitres of blood).  You’re charged with drunk driving.  It appears to be an open and shut case.  You are charged with “over 80” and you were, in fact, “over 80”.  So how can this charge possibly be defended?

As a starting point, it is important to remember that the Crown must always prove its case beyond a reasonable doubt.  What this means is that if the Crown is unable to or has forgotten to prove an element of the offence then it has failed to prove guilt beyond a reasonable doubt.  In drinking and driving cases this isn’t as straight forward as it sounds.

Drinking and driving cases are different from other types of offences.  What makes them unique is that the Crown relies on many legally-sanctioned “shortcuts” in order to prove these cases.

Some of these “shortcuts” exist in the area of Charter rights.  As an example, a person is normally entitled to receive his or her rights to counsel (i.e. rights to a lawyer) upon being detained by the police.  However, the right to a lawyer is suspended at the time a person is required to provide a roadside screening device sample.  In other words, you do not have a right to speak with a lawyer before providing the sample.

Another area in which “shortcuts” exist relates to the laws of evidence.  For example, when a person provides a breath sample at the police station, the machine gives a reading of blood alcohol content.  The reading states what the blood alcohol content is at the time the sample is provided.  However, what the Crown needs to prove is the blood alcohol content at the time of driving.  How is this done?  The law provides an evidentiary “shortcut” that deems the reading at the time the sample is provided to be the blood alcohol content at the time of driving.

Often times, these “shortcuts” are necessary in order for the Crown to obtain a conviction.  However, these “shortcuts” come at a price. Each “shortcut” has an accompanying set of prerequisites.  If the Crown cannot prove that all the prerequisites have been met, then it will not be allowed to rely on the shortcut.  This is the area in which much of the litigation arises and many cases are successfully defended.

Let’s take the example of the “shortcut” above, that deems the blood alcohol reading at the time the sample is provided to be the blood alcohol content at the time of driving.  In order for the Crown to rely on this presumption, it must prove that the sample was taken “as soon as practicable”.  If the Crown cannot demonstrate this, then it cannot use the “shortcut” to prove its case.

Other areas of litigation also exist.  The machines used to obtain the blood alcohol readings can come under attack.  This can be done by either pointing to evidence presented in the Crown’s case, providing defence evidence, or a combination of both.

Because of the way the law is structured in relation to the proof of drinking and driving offences, such cases can be defended on numerous grounds.  A lawyer with a thorough knowledge of this area of law and a good imagination will often be able to detect an area of the Crown’s case that is weak.  Often times, a case that appears to be open and shut is not.