December 16, 2006

"I only had two beers" -- it's the "two-beer" defense to drunk driving.

Are you going to believe that or the breathalyzer? It's a serious question in Canada.

14 comments:

Troy said...

More junk science from the defense bar, unfortunately too many jurors buy into it.

Hamsun56 said...

Here in Norway the limit is .02%. Anyone caught speeding or involved in an accident is tested. In addition, there are random checkpoints where all drivers are tested - no need for probable cause.

The minimum penalty, for first time offenders not much over the limit, is a loss of license for two years plus a fine of one month's salary.

If you blow positive on the first test, you are taken to the police station for a more reliable test. Even a legal dream team can't help you if you register positive on the second test.

Draconian but very effective in reducing accidents due to DUI.

Joel Fleming said...

The problem is that past case law has established a precedent that breathalyzer results can't be used to question the credibility of witnesses' testimony regarding the number of drinks consumed by the accused.
(See R. v. Boucher, 2005: http://scc.lexum.umontreal.ca/en/2005/2005scc72/2005scc72.html).
In theory, then, someone could blow an 0.20 on the breathalyzer, but find a few believable friends to testify that he only had two beers. If the friends seemed credible, absent the breathalyzer result, the accused might well get off.

There's also precedent up here in Canada for something called the "last drink" defence, where the accused claims that he rapidly chugged one or two beers just before getting in the car to drive home, and that, therefore, the alcohol had not yet entered his bloodstream while driving, but it had by the time of administration of the breathalyzer.

Bissage said...

Joel,

I typed out what follows before I read your comment. Could you set me straight?

* * * * * * * * *

Did the trial court preclude the defendants’ expert evidence as equivocal or did the factfinder reject it as incredible? If the former, then the trial court treated the “two-beer defence” as a true affirmative defense and tossed the presumption of innocence out the window. If the latter, then the appellants are arguing their evidence outweighed the prosecution’s evidence, as a matter of law.

Neither seems very likely to me. I must be missing something.

* * * * * * * * *

P.S. Regarding the "last drink" defense, I once went to a seminar where one of the presenters advised us to always keep a bottle of vodka in the car and, if pulled over, to chug some in full view of the police and spill a bunch on our clothes. He was only half joking. I think.

Richard Fagin said...

It's about time someone caught a break from "breath radar." The MADD crowd has been on a 25 year long rampage to criminalize marginally risky behavior, with asonishing success. When states lowered the presumptive limit to 0.1% blood alcohol concentration (BAC) in the late 70s and early 80s it really did make a difference in alcohol related accident rates. The likelihood of an accident with respect to BAC follows a hyperbolic curve, and the knee of the hyperbola is about 0.12% BAC. Lowering the limit to 0.08% really didn't change anything, because most of the benefit had already been obtained by lowering the limit to 0.1%. If you really peruse teh data carefully, you'll find that in most cases, spectacular drunk driving accidents are caused by people who are staggeringly drunk (0.2% BAC and up), not the tipsy ones with 0.09%.

Now that many other readers are going to accuse me of advocating drunk driving, let me assure you I'm not. But if you really want to solve the U.S. problem (deferring to the Norwegians' right to deal with their own issues as they properly see fit), lowering the BAC limit further is not the answer. Getting the hard core drunks off the road permanently is.

nathan said...

From a legal point of view I don't think the success of this argument is all that surprising. The certificate a technician produces after a positive breathalyzer is admissible as proof that the accused's bloood-alcohol level was above the legal cut off.

So, when it is admitted the certificate causes the court to presume a fact the Crown would otherwise have to prove. There are two main types of presumptions, legal presumptions and evidentiary presumptions. The difference is a legal presumption is assumed to be true unless the accused disproves it on a balance of probabilities, while an evidentiary presumption is discarded if there is evidence capable of raising a reasonable doubt that it is not true.

The presumption created by the introduction of the certificate is an evidentiary presumption (the statute clearly says it is, and a legal presumption would likely be unconstitutional anyway). So the issue isn't does the court believe the accused's testimony or the breathalyzer. It's whether the accused's testimony is capable of raising a reasonable doubt about the reliability of the breathalyzer.

So if the judge (impaired driving trials are almost never conducted in front of a jury in Canada) believes the accused's testimony, or even if she disbelieves it she finds it raises a reasonable doubt, the presumption is rebutted. As another commentator mentioned, the judge cannot consider the breathalyzer at this stage (for obvious reasons).

So, applying the internal logic of criminal law, I would think the accused's testimony, unless it is incapable of belief, ought to rebut the presumption, which would typically lead to a result of not guilty. Of course, no one will be surprised if the SCC fudges the issue so as not to let accused drunk drivers off.

caffeine soldier said...

"I only had two beers" -- it's the "two-beer" defense to drunk driving.
Are you going to believe that or the breathalyzer? It's a serious question in Canada.


Well, it's a serious question in Queens, NYC, too. To sad that no tests were performed on the five detectives. A double standard for the cops?
You can bet your life on that. Really.
:-[

nathan said...

In response to bissage:

"Did the trial court preclude the defendants’ expert evidence as equivocal or did the factfinder reject it as incredible? If the former, then the trial court treated the “two-beer defence” as a true affirmative defense and tossed the presumption of innocence out the window. If the latter, then the appellants are arguing their evidence outweighed the prosecution’s evidence, as a matter of law.

Neither seems very likely to me. I must be missing something."

The evidence of the expert was based on what the accused told him. Since the trial judge already rejected the accused's testimony, this part of the expert's evidence was given no weigh. The expert's testimony can be no more plausible that the assumptions of fact he has based it on. Since the court has decided those assumptions were wrong, it properly gave no weight to this aspect of his testimony. The other aspects of his testimony did not raise a reasonable doubt.

You are correct that the presumption of innocence has been "thrown out the window" (although I wouldn't put it so dramatically). As I explained in my previous post there is a presumption that the certificate proves the accused was above the legal limit.

I could be mistaken, but my understanding is in the US an accused must prove an affirmative defence on a balance of probabilities. There is no such requirement in Canadian law (aside from mental disorder), here once there is evidence giving an "air of reality" to what I believe you would refer to as an affirmative defence the court must consider the defence even if it has not been raised by the accused, and the Crown must disprove it beyond a reasonable doubt.

So to a certain extend the presumption of innocence is missing on a certain part of proving an impaired driving conviction, but much less seriously than what you may believe.

As for keeping a bottle of vodka with you to douse yourself, it might make it more difficult to prove impaired driving, but if you were found guilty anyway I'm sure the court would take it into consideration during sentencing. I would never advise someone to do that.

Bissage said...

nathan,

Thank you very much for your response.

Two points. First, You couldn't see it, but when I typed the words "tossed the presumption of innocence out the window", I was waiving my arms in the air and pantomiming the classic, open mouthed, with-all-due-respect-your-honor-you-can't-be-serious face.

Second, pursuant to your good advice, it looks like I'll have to find another use for that bottle of vodka. Heh.

JorgXMcKie said...

I agree that the MADD crowd has gone NUTS.

Having said that, we really do need to keep repeat offender drunken drivers off the doggone roads.

My brother was a long-time state trooper in a rural area. He got to know the local drunks who drove really, really well because he ticketed them so regularly and they got off easily (or totally before the DUI laws got toughened) just as regularly. Most, if not all of them continued to drive drunk until: a) they had a wreck and killed themselves; b) they died; c) they finally did something bad enough to get locked up; or (rarely) d) quit drinking. Being arrested just didn't stop anyone.

Also, he got the "I only had two drinks (beers), officer" all the time. His reply was, "What were they served in, buckets?"

He rarely ever, before the Breathalyzer Law was imposed bothered to try to ticket anyone who wasn't all but falling down drunk because it wasn't worth his time.

TW: ismgszrt. The sound a drunk makes when trying to insist he "only had two beers."

Ann Althouse said...

I once heard a guy -- in a hospital emergency room -- asked by doctors if he'd been drinking, answer: "No. Couple of six-packs."

Anonymous said...

It was beer- Beer's not drinkin'!

That said, is there another instance where the punishment is set up for incase SOMETHING happens, like DUI laws?

I can stand outside a bank all day long with a gun in my pocket and a mask in my hand, and not be charged with bank robbery.

Yet if I am found with a car key in my pocket and liquor on my breath, thats a DUI.

Maybe we need MABR- mothers Against Bank Robbery! ;?)

Kev said...

"I agree that the MADD crowd has gone NUTS."

No argument here. I discussed this a few years ago, in a post about a pair of Texas House bills that would have required "keg registration" and prohibited the sale of alcohol to anyone between midnight and 6 a.m. on their 21st birthday:

"I have no doubt that Mothers Against Drunk Driving (MADD) is behind a lot of this, and it's really hard in a way to bash on MADD; it's kind of like kicking a puppy. I too am against drunk drivers (to the point where I've wrestled keys away from people in the past), but it seems like MADD won't be satisfied until everyone stops drinking altogether. Am I wrong here? Isn't there a middle ground somewhere, or does the government have to get this involved to properly solve this problem? It just seems like the responsible people are being punished for the transgressions of a few..."

Both of those bills failed, by the way.

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