Bill C-2 will come into force on July 2 2008 and will result in significant changes to the law of impaired driving in Canada. Here is a summary of the Bill:

Bill C-2 seeks to increase penalties for those individuals who choose to drive while under the influence of alcohol and/or drugs. More specifically, Bill C-2 proposes an increase in fines and minimum jail terms for impaired driving and focuses on drug-impaired driving by giving police the authority to demand roadside Physical Sobriety Tests and bodily fluid samples at the police station.

Currently under the Criminal Code of Canada it is an offence to drive while impaired by alcohol or a drug, or a combination of the two and, while it is an offence to drive with a BAC of over 0.08, no similar drug limit exists. Simply put, although drug-impaired driving is a criminal offence, police have few legally designated means of controlling the offence. Today, police do not rely on drug testing; police instead rely on non-quantifiable symptoms of drug-impairment, such as erratic driving and witness testimony. Drug tests are admissible as evidence in court only if the accused participates voluntarily.

Bill C-2 proposes to give police the power to demand Standardized Field Sobriety Tests (SFST), administered at the roadside, when there is a reasonable suspicion that a driver has a drug in the body. If the driver fails the SFST, the officer will then be considered to have reasonable grounds to believe that a drug-impaired driving offence has occurred, and can take the driver to a police station for a Drug Recognition Expert (DRE) evaluation.

On the occasion that a DRE officer identifies that a specific drug is causing impairment, Bill C-2 allows the officer to take a sample of bodily fluid (saliva, urine, or blood). Such tests will look for impairment by illegal, over-the-counter and prescription drugs. Refusal to comply with these demands would be a criminal offence, punishable under the same Criminal Code penalties for refusing to take a breathalyzer test.

Bill C-2 also increases penalties for both alcohol and drug-impaired driving and creates new offences with respect to impaired driving causing death or bodily harm. The proposed legislation also aims to further deter drug impaired driving by making it an offence under the Criminal Code to be in care or control of a vehicle while in possession of illegal drugs, punishable by up to 5 years imprisonment.

In recent decades, some drivers charged with impaired driving have avoided conviction for having a BAC over 0.08 by calling on witnesses to give sworn testimony that the accused drank small amounts of alcohol (“only two beers”) which would not be enough to cause their BAC to be over 0.08. This ‘two beer’ defense has had the effect of invalidating the presumption that BAC readings of approved instruments equaled the driver’s actual BAC at the time of driving, despite the fact that those instruments were rigorously tested with no indication of improper operation or malfunction. The proposed legislative changes severely restrict such challenges to the BAC result. Evidence for challenges can include evidence that the machine was not functioning properly or was not operated properly. In addition, the Alcohol Test Record, which is printed by the breath test machine and confirms that is in good working order, will be admitted as evidence.

See: Canadian Criminial Justice Association

Police dogs and alcohol sensors

The Supreme Court of Canada ruled today in a pair of 6-3 decisions that police cannot use scent-tracking canines for random searches in public places, including schools, parks, malls and bus terminals.
The two decisions will likely put an end to the commonplace practice of random sweeps with sniffer dogs in public places, especially to detect illegal drugs.
Police must now have a reasonable suspicion that an individual has a prohibited substance before they can conduct a search with sniffer dogs.
The search cannot be based on speculation or a mere suspicion – there has to be something more.
In the law relating to DUI cases, the rulings will likely be relevant to the potential use of Passive Alcohol Sensors, devices disguised as flashlights which police can use to sample the air inside a vehicle without the driver’s knowledge.

“I only had two beers”

Canada's "two-beer defence" for accused drunk drivers, which allows them to lead evidence to contradict the breathalyzer and argue that they could have been under the legal limit despite failing the breath test, was recently rejected by the Supreme Court of Canada.

The Supreme Court decision effectively kills so-called "straddle evidence," in which an expert testifies that based on general factors such as age, body weight and the amount of alcohol consumed, the accused may have been under the legal limit, even though they failed a breathalyzer.

In straddle evidence cases, the expert’s opinion is that the driver’s actual blood alcohol level fell somewhere along a range of readings, and that the low end of the range was less than 80 mgs of alcohol in 100 ml of blood (the legal limit for driving) but that the high end was above it. The range of possible blood alcohol levels straddles the legal limit.

The ruling concluded that allowing experts to estimate blood-alcohol concentration is too unreliable, mainly because the rate at which a person metabolizes alcohol varies from time to time and the testimony is based on how many drinks an accused person claims to have consumed.

This decision has little bearing on our DUI practice, though, because our office has rarely led evidence to the contrary when the high end of the possible range exceeded the legal limit. We have, though, been able to raise a doubt about the accuracy of the readings when the high end of the possible range falls below the legal limit.

Dangerous Driving – Accidents Happen

In the recent Supreme Court of Canada case of R v. Beatty, it was held that drivers who commit "momentary acts of negligence" should not be held criminally responsible for their mistakes -- even if there are devastating consequences. In the case at hand, Justin Beatty was driving his pickup truck on the Trans-Canada Highway near Chase, B.C., on a clear summer day when the truck briefly crossed the centre line of the road and collided with an oncoming car, killing three women inside.

At the scene, a stunned Beatty told police and paramedics that he may have lost consciousness due to heatstroke, after working all day in the sun. There was no evidence of intoxication, and witnesses driving behind Beatty said his truck had been driven normally, at the legal speed, before the crash.

The court stated that, "The heavy sanctions and stigma that follow from a criminal offence should not be visited upon a person for a momentary lapse of attention."

The court recognized that he made a split-second mistake that is all too common on Canada's roads.

- GS

Less than one drink ....

Lawrence Taylor's pointed me to an article in the Phoenix New Times, about a mother who was arrested for felony DUI, and the two year battle to clear her name:

The businessman was meeting with clients for lunch at Mimi’s Café when he noticed the woman. Sitting a few tables over with her 4-year-old boy, she seemed groggy — yet she was drinking a mimosa.

It got worse. The woman ordered a glass of white wine, then another. She was so out of it, the businessman would later write in a statement to police, that she looked ready to fall asleep at the table.

When the woman paid her bill and left the restaurant, the businessman was right behind her, cell phone in hand. When she ran a stop sign in the parking lot, he called the police.

By the time the cops showed up a few minutes later, the woman already had parked at the Chandler Mall, less than a mile from Mimi’s. She was buying bath salts when the businessman pointed her out to the cops.

Thanks to the businessman’s intervention, Shannon Wilcutt was eventually charged with three felony counts: a DUI above 0.08, a DUI with a child under 15 in the car, and drug possession.

Justice served, right?

Hardly.

Turns out, those glasses of white wine were actually water. Wilcutt was groggy because she’d just had dental surgery. She’d thought a mimosa might be soothing, but when it stung her sutures, she pushed it away half-finished.

The proof is in the police report: Wilcutt’s blood alcohol content was only 0.02, the equivalent of one drink. She wasn’t even close to the legal limit.

No matter. Shannon Wilcutt was busted anyway. Her little boy was taken from her as she was handcuffed, arrested, and entered into the justice system. That meant weekly random alcohol tests, weekly phone calls to a court-appointed “counselor,” and the looming possibility of heavy fines and a three-year license revocation, not to mention jail time.

It would take two years and thousands of dollars for Wilcutt to be vindicated…

(DUI Blog)