Recent Changes To Federal Impaired Driving Legislation As It Relates To The Use Of The Breathalyzer Machine

One of our concerns with the new legislation is that it places all the emphasis on the Breathalyzer machine and removes any question of reasonable doubt about the machine’s results.

There could still be reasonable doubt in light of contrary evidence provided by witnesses, individuals such as friends, colleagues, co-workers or whomever. In the past, the judge had the discretion to say: I believe the number that the machine gave and I do not believe the information that I have heard from these individuals. That is part of assessing the facts that the judge has to make in every trial. So even if someone says they only had two beers, the judge may well reject that evidence, based on the number given by the machine. We do not have any problem with that from a legal standpoint; in fact, that is the way fact-finding occurs in all legal cases.

The issue that we have with this legislation is that it effectively takes away the judge’s discretion in considering the evidence aside from the machine’s results. Most people work from the standpoint that the machine is relatively simple to operate and is usually operated correctly by a certified Breathalyzer technician, so the result must be accurate. My suspicion is that there will be more drawn-out and substantially more complex cases where lawyers will be forced to challenge the number the machine provides on the basis that the machine itself is not operating properly or that the technician was not operating it properly. In order to argue that point, we are likely to see much more complex disclosure requests involving records for that particular machine over a period of time and with different technicians and police officers – anyone who has used that machine, not just on the day in question. All this will be used to determine whether the machine is operating appropriately and is being maintained to the manufacturer’s specification.

That type of disclosure has long been denied on the grounds that it is not relevant, but the change in legislation may make judges more sympathetic to requests for disclosure of this nature. This reliance on Breathalyzer results alone will mean a longer trial with increased complexity and substantial scientific evidence. A longer trial will certainly affect the accused in terms of cost and in terms of their ability to drive, which is significant for people who don’t have a lot of financial resources and for whom driving is an important part of their job.

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If you, or someone you care about, is dealing with criminal law issues in the Toronto,Ontario Region, contact Adler Bytensky Prutschi Shikhman for a consultation.

This information is taken from an interview from November 29, 2007 with Ed Prutschi, Criminal Lawyer with Adler Bytensky Prutschi Shikhman, Toronto Criminal Lawyers. The article is provided as an information service only and should not be used as legal advice. Laws vary by jurisdiction so please consult with an appropriate legal professional if you are looking for help with a specific situation.