Court’s response to common impaired driving defence

The driver of a vehicle involved in a major accident near Hamilton has not succeeded in using the “bolus” drinking defence to have her impaired driving conviction overturned.

Bolus drinking is when a driver claims to have driven several drinks immediately before driving and that the blood alcohol level would have been below .08% (meaning it is not a Criminal Code offence) at the time of driving, even though the driver’s blood alcohol level was more than .08% when tested by police after being arrested.

Bill C-46, currently before a Senate committee, aims to quash this defence.

Shortly before 11 p.m. on Nov. 12, 2013, Kim Roberts was driving on Highway 6 north of Hamilton. While turning left, she got into a collision with another vehicle. Roberts was injured, as were two occupants of the other vehicle.

Roberts was later charged and convicted by a jury of two counts of impaired operation of a motor vehicle causing bodily harm. Police tested her blood alcohol level about two hours after the collisions, and the Crown and defence disagreed on how much alcohol Roberts had in her blood at the time of the accident.

Among other things, Roberts had argued her Charter rights, including the right to counsel, were violated. Both the Superior Court of Justice and Court of Appeal for Ontario rejected that argument. Roberts also argued that the trial judge in her criminal case did not properly instruct the jury on the issue of “straddle” evidence, Ontario Court of Appeal Justice David Paciocco wrote in a ruling released May 1.

A defence expert witness testified that Roberts’s blood alcohol level could have been as low as 0.069% at the time of the accident or as high as .098% – hence the term “straddle.”

About two hours after the 2013 accident, Roberts produced a breath sample showing a blood alcohol level of about 0.2%, more than twice the legal limit.

Roberts stated she had a “large, 20-ounce beer and a one-ounce shot of scotch” at a restaurant in Burlington earlier that evening. She also claimed that, shortly before driving, she had four more drinks: two large beers and two more shots of scotch.

So a motorist who drinks that much alcohol immediately before getting behind the wheel could have a higher blood alcohol level two hours later than at the time one was actually behind the wheel.

Roberts’s appeal was dismissed, in part because straddle evidence depends on “expert testing of the individual’s elimination rates under conditions similar to those that were in place prior to the time of driving,” Justice Paciocco wrote.

If Bill C-46 is passed into law, it will be criminal office to have a blood alcohol level of .08% within two hours of driving, Attorney General of Canada Jody Wilson-Raybould told the House of Commons earlier.

“Some people drink, or claim to drink, a significant amount of alcohol immediately before driving in the hopes of arriving at their destination before the alcohol fully absorbs and therefore before they are over the legal limit,” Wilson-Raybould said.

Bill C-46 has passed third reading in the house of common and second reading in the senate. It is a “companion” bill to Bill C-45, which would legalize possession of recreational marijuana.

There was at least $20.62 billion in losses from impaired driving in 2010 alone, MADD Canada suggests. They include costs related to hospital expenses, property damage, death and injuries, among others.