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