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The “Last Drink” Defence presented by William D. Delaney

The “Last Drink” Defence presented by William D. Delaney. The “Last Drink” Defence – What is it?. “Sure I’m over 80 now (the breath test)”… …“But I wasn’t over 80 then (driving)” “I’ll have one for my baby…and six more for the road”

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The “Last Drink” Defence presented by William D. Delaney

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  1. The “Last Drink” Defence presented by William D. Delaney

  2. The “Last Drink” Defence – What is it? • “Sure I’m over 80 now (the breath test)”… • …“But I wasn’t over 80 then (driving)” • “I’ll have one for my baby…and six more for the road” • “I’m going to need a stiff drink before I face that DATAMASTER!” • Does not challenge accuracy of the instrument. • Driver under 80 at time of driving.

  3. Is there still a “last drink” defence after the amendments to the Code and after Gibson / MacDonald? • Yes • s.258(1)(d.1) • LIMITATION – can’t simultaneously challenge BOTH presumption of accuracy and presumption of identity. • Nothing new here… • Gibson [2008] 1 S.C.R. 397 was such a case

  4. Why the severe limitation to the “Carter” defencewhile leaving the “last drink” defence intact? • Charter

  5. Is it possible to raise a “last drink” defence on “straddle evidence”? • R. v. Gibson [2008] 1 S.C.R. 397 • Gibson quickly drank five beers five minutes before stop • Blew 120/100 • Expert placed Gibson at between 40 – 105 at time of driving

  6. History of Case • Trial – acquittal • Appeal – Supreme Court – dismissed • Appeal – C.A. – granted – new trial ordered

  7. The S.C.C. answered our question:Can straddle evidence rebut the s.258 presumptions? • No • Yes • Maybe

  8. S.C.C. Split Three Ways • Charron J. and three others – dismissed appeals • LeBel J. and two others – concurred for different reasons • Deschamps J. and one other - dissented

  9. Charron J. and Three Others • Straddle evidence cannot defeat the s.258 presumptions… • As a matter of judicial policy, individualized alcohol tolerance testing should not be required

  10. LeBel J. and Two Others • Straddle evidence is admissible and relevant • Straddle evidence will rarely be sufficiently probative to rebut s.258 presumptions • Alcohol tolerance testing controlling for variables such as type and number of drinks, food ingested, etc. may render straddle evidence more probative.

  11. Deschamps and One Other • Straddle evidence can rebut the s.258 presumptions • Prevailing direction approach

  12. How are Courts Interpreting the S.C.C. Split Decision in Gibson / MacDonald? • Charron J. and three colleagues are authoritative • R. v. Eddingfield [2008] S.J. No. 398 (Sask. C.A.) • R. v. Hughes [2009] A.J. No. 3 (Alta. C.A.) • R. v. Katheer [2009] O.J. No. 2884 (Ont. Sup. Ct. of Justice) • R. v. Leger [2008] N.B.J. No. 167 (N.B. Prov. Ct.) • LeBel and two colleagues are authoritative • R. v. McCulloch [2008] O.J. No. 5584 (Ont. Ct. of Justice)

  13. In conclusion… • There is a “Last Drink” defence • And a “Drinking after Driving” defence • But, not likely to succeed on basis of straddle evidence.

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