A case in Yorkton court a couple of weeks ago proved once again, that you really cannot beat Section 253 of the Criminal Code.
This is the section that deals with impaired operation of a motor vehicle. For reference:
253 (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,
(a) while the person鈥檚 ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person鈥檚 blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(a) includes impairment by a combination of alcohol and a drug.
This is a very tidy piece of legislation. Note how it covers all modes of transportation and all drugs, as well as 鈥榗are or control鈥� i.e., 鈥渨hether it is in motion or not.鈥�
Of course, it is used most frequently for alcohol and just for insurance, it specifies a blood alcohol content just for insurance against the, 鈥榶es, your honour, I was drinking, but I was not impaired鈥� defence.
Our case in point involves a defendant, who was more clever than most. Having collided with a bridge and injured himself on Hwy 9 just north of Yorkton, our antagonist made his way to the hospital before police arrived on the scene.
The investigating officer, having had reports that the driver of the truck may have been drunk, tracked him down at the hospital and made a breath demand. He refused.
This used to be a classic method for beating a drunk driving charge, but that loophole was closed up with the introduction of 254 (2), which says, in a nutshell, you can鈥檛 refuse if the officer has reasonable grounds to make the demand.
And therein lies the only defence that might make 253 beatable in a drunk driving case. In this instance the defence made a valiant attempt.
At trial, a defence attorney argued his client had not been impaired at the time of the collision, rather a deer had jumped in front of his truck. Furthermore, the defence said the officer did not have reasonable grounds to make a breath demand even though she had been told by dispatch the defendant appeared impaired, had eyewitness testimony to that effect and had her own observations of signs of impairment such as bloodshot eyes and slurred speech.
The suspect also liedto the officer at first saying a 鈥渂uddy鈥� had been driving, but the defence also noted a significant time lapse as the investigator had initially been directed an incorrect location on Hwy 10 rather than Hwy 9.
Lying to a police officer is not proof of impairment. And blood shot eyes and slurred speech could certainly have been caused by being in a collision and being smacked in the face with and airbag.
And Section 254 (2) is clear a demand must be made and a sample taken within three hours of the alleged offence.
A judge must find in the defendant鈥檚 favour, if he has 鈥渞easonable doubt.鈥�
On this day in court,聽 Judge Green did find reasonable doubt that the accused had been impaired at the time of the collision. The defence had beaten 253 (1). He also beat 253 (2) because there was no sample to prove his blood-alcohol level was over .08.
He could not beat 254 (2), however. The judge said he was satisfied 鈥渂eyond a reasonable doubt鈥� that the police officer had made a lawful demand and thus the defendant鈥檚 charter rights had not been violated.
The judge found him guilty of refusing to provide a sample and and guess what? The penalty for refusing is exactly the same as being impaired and/or have a BAC of .08 or greater.
There is truly one, and only one, way to ensure beat a conviction under this legislation and that is to not drink and drive.
Impairment by drug is not so cut-and-dried, however.
