This Law Will Be Challenged

Police no longer need a reasonable suspicion of impaired driving in order to conduct a breath test of anybody with care and control of a vehicle.
Police no longer need a reasonable suspicion of impaired driving in order to conduct a breath test of anybody with care and control of a vehicle.

Changes to Canada’s impaired-driving laws could leave people having to defend themselves in court even if they only started drinking alcohol after they stopped driving, lawyers say.

The changes, which took effect last month, make it a criminal offence to have too high of a blood-alcohol level within two hours of driving. There are exceptions for people who consumed the alcohol that put them over the limit after they stopped driving – but it falls on the motorist to prove that.

The two-hour rule means police no longer have to catch an impaired driver before they leave their vehicle. Officers can show up at a suspect’s home or workplace, or wherever else they may be, demanding a breath sample.

“These new changes are radical,” Calgary-based criminal defence lawyer Ian Savage told CTVNews.ca.

“They’re going to make it … more difficult for the police and the prosecutors, and they’re going to make it more difficult for the average citizen. I don’t see any real benefit to these changes.”

Michael Spratt, a criminal defence lawyer based in Ottawa, says these changes were made because the government was attempting to eliminate a defence some motorists could use to avoid an impaired driving conviction.

“Before the police interacted with them they’d pull out a bottle of vodka and chug the whole bottle – so then they could say ‘Well, look, I blew over at the police station, but at the time I was driving I was completely sober,’” Spratt told CTVNews.ca, adding that it was “very rare” for this defence to be used in court and even less common for it to succeed.

By attempting to crack down on that unusual defence, the government is shifting the onus of proof to people who drove and then drank, requiring them to prove that they only became impaired after they stopped driving. This means hiring a toxicologist to provide expert testimony in court.

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