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Changes to drinking and driving rules in the Criminal Code came into effect a couple of years ago as part of the government’s anti-crime agenda. Those rules made it more difficult to present a DUI defence in criminal cases where a defendant was charged with “Over 80”- that is, driving over the legal limit of 80 mg of alcohol in 100 ml of blood.

DUI lawyers were able to present evidence of what their client actually drank before driving to raise a reasonable doubt about the Intoxilyzer breath machine’s blood alcohol measurements. Parliament closed off this option, known as the Carter defence, because the government argues that the breath machines are very accurate and their measurements should not be easily challenged. They closed off this drinking and driving defence by requiring that the defendant introduce evidence showing that: (a) the machine was malfunctioning or operated improperly; that the malfunction or improper operation resulted in the Over 80 test result; and that the defendant would not have been over 80 at the time of driving.

The Supreme Court of Canada recently examined these new rules, and concluded that Parliament went too far in restricting the ability of criminal defence lawyers to defend their clients. The “Over 80” defence lawyers at The Defence Group have reviewed the Court’s decision in R. v. St-Onge Lamoureux.

As a result of their analysis in St. Onge, the Supreme Court has determined that by requiring that a criminal defendant charged with an Over 80 offence to show not only that there is a problem with the machine or its operation, but also that his or her blood alcohol concentration would be below 80, was too high a threshold to climb. They struck down this extra requirement as a breach of the defendant’s Charter rights, namely the presumption of innocence protected by s. 11(d) of the Canadian Charter of Rights and Freedoms.

The presumption of innocence means that the Crown must prove guilt against a criminal defendant, beyond a reasonable doubt. It is not up to you to prove your innocence, but the government that must try to prove your guilt. In passing amendments to the Criminal Code that required that a defendant charged with over 80 or a DUI prove that he was “under 80” at the time of driving, the government infringed on the rights of the accused.

It is encouraging that the Supreme Court, in the face of a government determined to erode the rights of the accused and to undermine legal defences, has drawn a line in the sand when it comes to drinking and driving cases. To read the case, click here

The DUI defence attorneys at The Defence Group are here to advise and defend your drinking and driving case. Whether you are charged with impaired driving, care and control, or Over 80, we have criminal defence lawyers available to help you from offices in Toronto, Vaughan, Scarborough and Oakville. Our drinking and driving lawyers cover the courthouses in Newmarket, Oshawa, Toronto, Milton, and anywhere else in the GTA.

We offer a free consultation, flexible payment plans and reasonable fees, and the best criminal defence anywhere.

For a free consultation or to visit our website, click here

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