Criminal Code amendments effective July 2008 require that impaired driving trials now treat breathalyzer readings as “conclusive proof” of the blood alcohol content [BAC] of the accused “at the time of driving”.  Before this change, the Criminal Code allowed the accused to rebut the presumption created by an over-the-limit test with “evidence tending to show the BAC when the alleged offence was committed did not exceed…[.08].”

 

This was colloquially called the “two-beer defence.”  Under the new rules, only whether the breathalyzer malfunctioned or was operated incorrectly or whether the blood sample analysis was performed improperly is admissible.

 

The constitutional challenges predicted by defence lawyers have now begun with the first judge in Canada to rule on the issue, Justice Bruce Duncan of the provincial court in Brampton, Ontario upholding the new law.  The case involved a 49-year-old man, Wojciech Powichrowski, who was detained by police when they saw his car parked on a residential street outside Toronto, early on August 8, 2008.  Mr. Powichrowksi was asleep in the car with the headlights on but the engine off. The police arrested him for having care and control of a motor vehicle while impaired.  The two breath samples they took using an Intoxilyzer 5000 C device registered readings of .154 and .141, well over the .08 limit.

 

Although Mr. Powichrowski had witnesses to testify about how much he drank that night and expert toxicology evidence that, based on his height and body weight, he could not have been over the legal limit, he did not have any evidence suggesting the testing device malfunctioned.  His lawyer argued that the new law presented him with an almost “impossible task”— to show that the machine was not only malfunctioning, but in such a way to make the result more than the legal limit and also that the BAC of the accused was below .08— and asked "Do we want to have trials by machine?"

 

Reports note that the lawyer summarized the law as requiring a judge to convict based on the reading of the testing device even if the judge believed the defendant about what they actually had to drink. " That just doesn't seem right," he is reported to have said.

 

Justice Duncan disagreed.  The law "does not support the proposition that the bar for success on a defence must be set so low that it can easily be cleared.  There is probably no requirement that the law provide for any defence at all, much less one that is easily attainable," he wrote.  Justice Duncan also agreed with expert evidence that approved breathalyzers have sufficient self-tests built in to reveal if there is a malfunction.

 

While the defence lawyer conceded that in most cases, the devices are accurate, he argued that if there is a malfunction, “there is virtually no legal avenue to raise a reasonable doubt, or enough information for the defence to prove the machine made an error.”

 

The ruling was immediately appealed to the Superior Court of Ontario and the appeal is to be heard this spring.