Defending Excess Blood Alcohol (80 Plus) Charges

Many people not in the practice of Criminal Law commonly ask, “How is it possible to defend against an Over 80 charge, when the person is clearly guilty”?   It’s a fair question.   After all, the police have a scientific method by which to determine the person’s blood alcohol concentration.   Unlike in many other areas of criminal law, proof of the offence lies within a number, rather than an interpretation of vague legal terminology.

The reality is, there are a number of different technical aspects of this area of law that lawyers will review in order to determine if there is a defence.  I will highlight a few of these in this blog.

Validity of Screening Test

In most cases, the police obtain the breathalyzer evidence at a police detachment or division.  In ordert to escort an individual back to the police station, the police must have determined that there are reasonable grounds to believe that the individual committed a DUI offence (for the purpose of this post, we are referring only to the Excess Blood Alcohol offence).

One common way the police will commonly make this happen is by conducting a “roadside screening test” by way of an Approved Screening Device (ASD).    The purpose of the roadside test is to determine if there is a sufficient level of alcohol in the person’s body to require them to attend at the police station for actual (evidentiary) testing.  As of December 18, 2018, the law changed with respect to these tests.    In circumstances where the police have an ASD device in their possession, they can perform randomized / mandatory tests.   In short, they do not need a reason to test you.

If they do not have the device in their possession and, let’s say, have to call for one, then they are not permitted to conduct randomized tests.  In this situation, they must have a legal basis for requiring someone to perform a roadside test.  In particular, they require a “reasonable suspicion” that the individual has alcohol in his/her body.

One line of defence is to attack the legality of this demand, in situations where the police did not have an ASD device in their posession.

Validity of Arrest for Impaired Driving

Another common way that the police can legally transport an individual to a police detachment is if they arrest the individual for “Impaired Driving“.   In these circumstances, the police must have reasonable grounds to belive that the person’s ability to drive was impaired by the consumption of alcohol or drugs.   The officer must have an honestly held (subjective) belief in this conclusion and, secondly, that belief must be reasonable in the circumstances (objectively).

Defence lawyers will analyze the reason for the arrest, and look at what observations were made by the police.    If there is room to argue that there was a lack of observations which suggested impaired ability to drive, then the lawyer can attack the validty of the arrest.  If the arrest was invalid, the argument goes that the seizure of the breath samples at the stations were also invalid.

For both arguments (the Invalid Screening Test and Invalid Arrest), a “Charter” application would have to be made, suggesting that there was a violation of the individual’s right to be free from an unreasonable search and seizure, and that the breath sample evidence should be excluded.

There are other arguments that a lawyer will look for, some even unrelated to DUI Law at all (for example, whether there was an unlawful strip search).