Two-beer defence taken to court

TORONTO—New federal legislation that virtually abolishes a “two beer” defence to an impaired driving charge is being pulled into court for a legal spot check.
Before the new legislation took effect July 2, people accused of driving with more than .08 mg of alcohol in 100 ml of blood—particularly if they were only marginally over the limit—often would argue they had consumed just two beers.

They also might say they drank the last one not long before the breath test, which could have resulted in more alcohol in their breath than in their blood.
Under the new changes, part of the federal government’s Tackling Violent Crime Act, accused people who want to challenge a breathalyzer result are now required to provide the court with technical evidence proving the equipment was malfunctioning or wasn’t operated properly.
Some lawyers say the new legislation is unconstitutional.
The first step in the legal challenge begins today when defence lawyers and the Crown appear in the Superior Court of Justice in Toronto for arguments over which level of court should hear the challenge.
“We’re just trying to resolve things quickly so the government can get on with the business of prosecuting impaired drivers,” said law professor Alan Young, who, with defence lawyer Joseph Neuberger, represents three men charged with having unlawful blood alcohol levels.
Young and Neuberger believe the legislation is unconstitutional because it no longer permits them to raise reasonable doubt about the validity of a breathalyzer result by calling evidence about their clients’ pattern of alcohol consumption.
They say the new rules for challenging breathalyzer results set an impossible standard and leave people who are at risk of losing their licence with only an “illusory” defence to the charges.
“The particulars of the breath machines, including maintenance records, specs, and the manufacturer’s manual, are shrouded in secrecy, withheld by the Crown and the manufacturer,” Neuberger said.
The legislation was introduced partly in response to concerns raised by police and the advocacy group Mothers Against Drunk Driving.