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Written By
Serhiy Senatorov
TRAFFIC LAW Paralegal Services
Licensed Paralegal

SUN TIMES

Lawyers say it has become harder to beat drinking and driving charges since Criminal Code changes last year all but eliminated the so-called "two-beer defence," which attacked breath test results.

"I think that it has very significantly affected the scope of defence that can be put forward on impaired operation and over- 80 charges," said Clayton Conlan, president of Grey County Criminal Lawyers' Association, in a recent interview.

Until July 2, 2008, people could testify the accused drank less than the breathalyzer instrument indicated, so critics called it the two-beer defence.

A hired toxicologist would testify the accused's blood-alcohol concentration must have been lower than the test indicated, based on body weight and consumption.

Defence lawyers would then argue the breathalyser must have been wrong, without having any direct evidence it malfunctioned.

Follow up:

The law now requires the defence to also present evidence suggesting the breath-testing device wasn't working properly or there was operator error.

Conlan estimated this two-beer or "Carter defence" was used in "at least half " of the impaired driving and over 80 drinking and driving cases that went to trial before the law changed more than one year ago.

Consequently, lawyers are leaning more heavily in such cases on arguments based on the Charter of Rights and Freedoms. They're questioning, for example, whether police had proper grounds to make a breath demand or if they read them their rights to counsel properly, Conlan said.

It's not clear how many more convictions or how many fewer cases are going to trial as a result. The Ministry of the Attorney General doesn't keep those statistics, and Statistics Canada data aren't current.

But 2006/2007 data, the latest available, show there was already a 79% conviction rate for those charged with impaired driving and associated charges, while the overall criminal conviction rate was 65%.

The Criminal Code changes should improve the drinking and driving conviction rate but "not substantially so," said federal Justice Department researcher Nicole Crutcher, who is eager to see the conviction data.

In May the Ontario government also lowered the allowable blood-alcohol concentration to drive to 0.05, at which point the driver's licence will be suspended for three days. The threshold for a criminal charge remains .08.

To attack the breath test results, defence lawyers now commonly ask for all records concerning maintenance, repairs and calibration documenting the state of the breath-testing instruments.

Crowns are opposing the requests, arguing the information is not relevant, and judges are deciding who's right in technical disclosure hearings.

In Owen Sound, Ontario Court Justice Julia Morneau is considering her decision in one technical disclosure application which said recently will indicate her general view on the issue.

At least four such disclosure applications have been made recently in Owen Sound. One of them was requested by Alec Fiszauf, a Brantford lawyer who represented a man whose charges were withdrawn. Fiszauf wouldn't comment on that case.

But he agreed it has become harder to beat the charge of driving over the legal limit, the over 80 charge. He said he couldn't estimate yet if he has lost more cases because of the change in the law, given appeals and delays.

Already there have been conflicting Ontario Superior Court judgments on the issue. It's expected the matter will ultimately be decided by the Supreme Court of Canada.

Technology is also making it more difficult to beat drinking and driving charges.

This summer, the Grey County Ontario Provincial Police replaced all their old breathalyzer machines with Intoxilyzer 8000s.

The OPP spent $1.9 million to replace the old breathalyzer instruments at detachments across the province due to July, 2008 Criminal Code amendments, Acting Sgt. Erik Chamberlain, of the Criminal Traffic Offences and Devices unit of the OPP.

The Intoxilyzer 8000 is "fully automated" and produces a printout record of the test and the instrument's internal testing.

The old breathalyzers rely on manual manipulation from the breath technician operator and can't produce a printed record of the breath test results.

Fiszauf noted the new instruments keep a computer log of past breath tests, which could be helpful for defence lawyers.

Toxicologists need this data if they are to investigate whether the devices work properly Conlan agreed.

But he also noted a toxicologist with the Centre of Forensic Sciences has testified Intoxilyzers present less opportunity for a legal challenge, because their computer printouts and self-diagnostic software make them less exposed to human error.

"The defence is probably going to keep trying to challenge Intoxilyzer readings but I think it's going to be a real uphill battle."

Written By
Serhiy Senatorov
TRAFFIC LAW Paralegal Services
Licensed Paralegal

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