lenaitch
Senior Member
I finally took the opportunity to read the legislation, which is what I probably should have done first. Breath analysis legislation has always had a provision that, if both tests were taken within two hours of the offence, then they were presumptive evidence of the blood-alcohol at the time of the offence. In recent years, several popular defences have been advanced, including 'power drinking just before driving' (it's a bodily absorption,sciency thing). The way I read the new legislation, it changes the 'two hour thing' from a legal presumption - which can be argued against - to a substantive part of the offence - which can't (absent successful appeals). There is actually a pretty good FAQ on the Justice Canada website:
. . .
Why was the offence of driving over the legal limit (the "over 80" offence) broadened so as to capture drivers who were at or over 80 "within two hours of driving"?
The offence of "operating at or over 80 within two hours of driving" eliminates the bolus drinking defense by changing the time frame within which the offence can be committed. It is no longer relevant that the person's blood alcohol concentration may have been below 80 mg at the time of driving.
What is the bolus drinking defence and why was it eliminated?
"Bolus drinking" refers to situations where a driver claims that, although they consumed alcohol just before or during driving, they were not over the legal limit while driving because the alcohol was not fully absorbed until the time of testing. This defence rewards the risky behaviour of drinking immediately before or during driving in the hopes of arriving at a destination before being too drunk to drive or being at the offence level.
The new law changed the timeframe of the offence (i.e., to being at or over the offence level within two hours of driving). Therefore, the argument that alcohol was still being absorbed has become irrelevant.
What is the intervening drink defence and why was it restricted?
The "intervening drink defence” refers to situations where a driver consumes alcohol after driving but before providing a breath sample at the police station. This conduct is often intentional and done to interfere with the breath testing process.
By changing the timeframe of the offence (i.e., to being at or over the offence level within two hours), the argument that post-consumption alcohol was the cause of the high blood alcohol concentration is no longer relevant. Recognizing that there may be situations where the post-driving consumption of alcohol was innocently done, the legislation provided a limited exception, (i.e., the driver drank after driving and had no reason to expect that they would be required to provide a sample of breath).
. . .
Legislation is regularly amended to counter entrenched defence arguments. This is not sneaky or abusive; the goal is to make and keep the act illegal.
However, in spite of what some media and media-loving lawyers are reporting, I can find no provision for the police to make a breath demand not in conjunction with a vehicle stop, so subject to being corrected, I see no authority to make a breath demand at somebody's front door.
. . .
Why was the offence of driving over the legal limit (the "over 80" offence) broadened so as to capture drivers who were at or over 80 "within two hours of driving"?
The offence of "operating at or over 80 within two hours of driving" eliminates the bolus drinking defense by changing the time frame within which the offence can be committed. It is no longer relevant that the person's blood alcohol concentration may have been below 80 mg at the time of driving.
What is the bolus drinking defence and why was it eliminated?
"Bolus drinking" refers to situations where a driver claims that, although they consumed alcohol just before or during driving, they were not over the legal limit while driving because the alcohol was not fully absorbed until the time of testing. This defence rewards the risky behaviour of drinking immediately before or during driving in the hopes of arriving at a destination before being too drunk to drive or being at the offence level.
The new law changed the timeframe of the offence (i.e., to being at or over the offence level within two hours of driving). Therefore, the argument that alcohol was still being absorbed has become irrelevant.
What is the intervening drink defence and why was it restricted?
The "intervening drink defence” refers to situations where a driver consumes alcohol after driving but before providing a breath sample at the police station. This conduct is often intentional and done to interfere with the breath testing process.
By changing the timeframe of the offence (i.e., to being at or over the offence level within two hours), the argument that post-consumption alcohol was the cause of the high blood alcohol concentration is no longer relevant. Recognizing that there may be situations where the post-driving consumption of alcohol was innocently done, the legislation provided a limited exception, (i.e., the driver drank after driving and had no reason to expect that they would be required to provide a sample of breath).
. . .
Legislation is regularly amended to counter entrenched defence arguments. This is not sneaky or abusive; the goal is to make and keep the act illegal.
However, in spite of what some media and media-loving lawyers are reporting, I can find no provision for the police to make a breath demand not in conjunction with a vehicle stop, so subject to being corrected, I see no authority to make a breath demand at somebody's front door.
