Drawing the line on drunk driving
By Tim Shufelt
The Ottawa Citizen
June 2, 2008

Next month, new legislation nullifies two common defences used by accused drunk drivers and makes breathalyser tests virtually infallible. MADD says the changes are long overdue, but defence lawyers fear that under the crackdown, innocent people will be convicted.

New federal legislation that takes effect next month will restrict those falsely accused of impaired driving from proving their innocence, prominent criminal defence lawyers say.

As part of the Harper government's Tackling Violent Crime Act, some common defence arguments that challenge the legitimacy of breathalyser tests, including the "two-beer defence" and the "last-drink defence," will no longer be valid.

"We think the legislation is unconstitutional because it means that, potentially, someone who's entirely innocent of the offence can be convicted," said Mark Ertel, president of the Defence Counsel Association of Ottawa.

The two-beer defence, which was already dealt a blow by a Supreme Court of Canada ruling in April, relies on testimony as to how much alcohol was consumed -- often just two beers -- and over what period of time.

Mothers Against Drunk Driving, however, says Canada's courts should never have validated that type of legal manoeuvre.

"It was ridiculous," said Margaret Miller, the president of MADD Canada. "The judges were believing you over the breathalyser, which is a scientific instrument. There's no way it should have been accepted for as long as it has been."

The amendments to the Criminal Code will render breathalysers infallible unless it can be shown that the device was defective or operated improperly.

The legislation was introduced, in part, to appease police officers, who say their efforts to curb drunk driving are regularly nullified by courts.

In Ottawa, police have become so frustrated with acquittals that they increasingly rely on temporary licence suspensions, rather than criminal charges, to deal with drivers who are marginally over the legal limit.

Central to many of those acquittals is the two-beer defence, which is based on the testimony of a toxicologist, who calculates what the defendant's blood-alcohol concentration should have been based on gender, age, height, weight and rate of elimination, or how quickly the body processes alcohol.

If the judge or jury feels that a reasonable doubt has been raised, the defendant may be acquitted.

Defence lawyers also rely on toxicologists to support the last-drink defence, when a defendant testifies to guzzling a drink not long before the breath test was administered, resulting in more alcohol on the breath than in the blood.

While breathalyser evidence may seem damning, the devices are, in fact, fallible, according to a former RCMP forensic toxicologist.

Even the newest generation of devices have a margin of error of plus-or-minus 10 per cent, said Brian Hodgson, who tested breath-analysis machines for the RCMP for 20 years. The universally accepted ratio of breath-alcohol content to blood-alcohol content can vary from person to person, he said.

Mr. Hodgson now provides expert testimony in impaired driving cases on behalf of the defence and the Crown.

Many factors can affect the accuracy of a breathalyser, Mr. Hodgson said.

"There's also the element of the quality of the breath sample provided, and that's where the breath technician has to be well-trained and diligent," he said.

While defence lawyers may no longer be able to attack breathalyser evidence, they still have other tools at their disposal, Mr. Ertel said.

The conduct of officers in administering the test is commonly challenged in court, for example. Another frequent point of contention is whether the defendant's Charter rights were met.

"It's the only commonly used part of the Criminal Code where the accused is required to provide the state with the evidence upon which he's going to be convicted," Mr. Ertel said.

Since that provision compels accused impaired drivers to incriminate themselves, police must take extra measures to ensure they follow the letter of the law. For instance, officers must give the driver the opportunity to consult a lawyer before submitting to a breath test.
For all the possible ways an impaired driving charge may be challenged, in fact, police feel like the law is stacked against them. Ottawa police say they are issuing more 12-hour licence suspensions for marginal offenders.

"There are so many loopholes and ways to contest it," said Michael Francis, president of MADD's Ottawa chapter. "I've spoken to police officers who say they can't get a conviction on 0.08. It's hard enough to get it at 0.10."

The legal limit for blood alcohol concentration in Canada is 0.08, or 80 milligrams of alcohol in 100 millilitres of blood.

However, many officers are not willing to charge a driver who registers between 0.08 and 0.10 due to the likelihood of an acquittal.

Impaired driving is "one of the most contested charges in the Criminal Code," according to Ottawa police.

Mr. Ertel blames that trend on the push for ever-increasing penalties for impaired driving, however. For most, the minimum penalties are simply too high to not fight the charge, he said.

With first-time offenders facing a one-year driving prohibition, plus a fine, a remedial driver's education program, the requirement to install an $1,800 in-car breath-screening device, astronomical insurance rates for five years, and a criminal record, there is no incentive to plead guilty, agreed Lawrence Greenspon, an Ottawa criminal defence lawyer.

A conviction adds up to a package that can exceed $50,000, and can put jobs, mortgages and marriages in jeopardy.

"The penalties are so severe in Ontario, probably more severe than anywhere in the civilized world. The result of that is that people who depend on their licence -- cab drivers, truck drivers, travelling salesmen and others -- who need their licence in order to have a job, are prepared to do whatever they can in order to save their licence," Mr. Greenspon said.

Impaired driving cases are complicated by the fact that those committing an indictable offence are separated from the law-abiding by a very thin line: a single milligram of alcohol in 100 millilitres of blood.

And for those marginal offenders, a temporary licence suspension is a more appropriate way of punishing them, Mr. Ertel said.

"I think that's a responsible thing for the police to do, to treat somebody who's barely over the legal limit differently from somebody who's way over the legal limit. That's a responsible use of police discretion," he said.

In addition, more discretion should be given to Crown attorneys, who are directed by Queen's Park to prosecute all impaired driving cases, as well as to judges, who are hamstrung by mandatory minimum penalties, Mr. Greenspon said.

MADD, on the other hand, would prefer to see marginal offenders prosecuted, something that could more easily be accomplished by lowering the legal limit to 0.05, Ms. Miller said.

Drivers registering above that level, and up to the existing limit, should be subject to less severe penalties under a new summary offence, Ms. Miller said.

"We're talking about 0.08 and 0.10 as if they are minor impairments, and they're not minor impairments. Somebody that has been impaired at a 0.08 level is very intoxicated. They've had a lot to drink in a short time frame. In many cases, for many people, impairment starts at 0.02," she said.

Raising the likelihood of conviction for everyone over the legal limit is a good step to reducing the 70,000 deaths and injuries caused each year in Canada by impaired driving, Ms. Miller said.

"We just want to end the death and carnage on the highways."