New Drunk Driving Law Held Up By Court Ruling

An unfavourable constitutional ruling from the Supreme Court of Canada may be responsible for the delay in implementing tougher drunk-driving laws brought forward by Justice Minister Peter MacKay.

The previous rules were prone to the so-called “two-beer” defence, which allowed those accused of impaired driving to challenge the results of police breathalyzer tests by stating they had not consumed enough alcohol to produce a alcohol-positive reading.

A piece of the 2008 “Tackling Violent Crime Act” was denied against the Harper government’s tough-on-crime agenda. The bill was seeking to mandate a greater burden of proof from the defence as to ‘why’ the roadside test should not be considered due to machine failure, or mistakes by the police officer giving the test.

However, the lower courts said the changes to the impaired-driving law were unconstitutional as they placed too great a burden on the defence. Those charged with impaired driving would required to give technical reasons why a breathalyzer reading was not reliable. This was deemed to be an unrealistic expectation. However this has since been overruled by the Supreme Court.

The high-court ruling has since prompted a flood of legal applications from defence lawyers for technical information on the maintenance and operation of individual breathalyzers. Lawyers across Canada need to know these details to show even minor malfunctions or misuse. MacKay had proposed to expand the use of breathalyzers so that police can administer the tests randomly, and not only when they have reason to suspect a driver is impaired. This is common practice in New Zealand, Australia and other countries.

Mackay suggested that random breathalyzer testing “eliminates the subjective assessment by the police officer and provides a scientifically valid way of detecting impairment.” Although realistically, the provinces may be hesitant to encourage more breathalyzer cases into their already clogged courts after the Supreme Court ruling triggered a wave of defence disclosures on the reliability of the machines and their operators.

The measure has the support of the Canadian Association of Chiefs of Police, the Canadian Council of Motor Transport Administrators, Mothers Against Drunk Driving and a 2009 parliamentary committee.

The new rules make defending your impaired driving charges more complex. If you have been charged with driving under the influence you will need an experienced impaired driving lawyer to challenge the road side test results and defend your interests. Contact Gunn Law Group to act as your drunk driving defence.

Posted on May 30th, 2014