Lawyers Take Aim At Legislation Blocking So-Called ‘Two Beer’ Defence

Federal legislation which brought an end to the so-called “two beer” defence is being challenged in an Ontario court.

The first step in the legal spot check came Monday in the Superior Court of Justice in Toronto where arguments were heard just to determine which level of court should make the ultimate ruling.

Alan Young and Joseph Neuberger represent three men charged with having unlawful blood alcohol levels while behind the wheel. They also say the legislative change is unconstitutional because it doesn’t allow for reasonable doubt about breathalyzer results by blocking evidence of clients’ pattern of alcohol consumption.

“We have to have laws that are fair so they can be adjudicated by the courts in fair manner,” Neuberger argues. “If they’re not that protects no one.”

Previous to the controversial legislation, enacted last July, those accused of driving with more than .08 milligrams of alcohol in their blood – especially those only marginally over the line – would simply insist they drank only two beers when their case was heard.

Some might also add the second beer was consumed only a short time before the test, meaning there was more alcohol on their breath than in their blood. Bringing witnesses that would attest to the level of consumption could be an effective defence strategy.

As it currently stands, accused wishing to challenge a breathalyzer result have to provide technical proof the gear was malfunctioning or being administer improperly. Young and Neuberger argue that’s virtually impossible.

“What the government has done is jump from reliability to infallibility,” Young insists. “And just remember … no technology is infallible.”

Impaired driving cases make up 12 per cent of court trials in Ontario and without quick rulings Neuberger and Young argue many will simply get caught in red tape and bog down the system.

So be it, says Mothers Against Drunk Driving Canada‘s Carolyn Swinson.

“The two beer defence is nonsensical,” she maintains. “To have somebody go into court who’s blown twice the legal limit and say that they only had two beers and the case gets thrown out … that’s an absolute travesty of justice.”

The judge that heard statements Monday is expected to bring down a decision sometime this week. If the case is allowed to proceed it could be resolved in the summer months of 2009 but if the appeals process is engaged it could be two years before a resolution is reached.

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What’s In The Law?

The law came into effect on July 2, 2008, as part of the federal government’s Tackling Violent Crime Act. What does it say about impaired driving and the so-called two beer defence? Here’s what in the legislation.

• Authorizing peace officers to conduct roadside sobriety tests, and authorizing peace officers trained as Drug Recognition Experts to: (a) test whether a person is impaired by a drug, or a combination of alcohol and a drug, and (b) to take samples of bodily fluids to confirm the presence of the impairing drug;
• Making it an offence to refuse or fail to comply with police demands for physical sobriety tests or bodily fluid samples. The offence would be punishable by the same Criminal Code penalty as refusing a demand for a breath test for alcohol – a minimum $1,000 fine for a first offence, with a maximum penalty of five years’ imprisonment for more serious offences;
• Making it an offence to refuse a demand for tests or samples when the operator knows, or ought to know, that they have caused an accident resulting in death, with a maximum penalty of life;
• Allowing only scientifically valid defences to be used as evidence to avoid conviction for driving with a blood-alcohol concentration over 80, thereby reducing the number of individuals who can avoid conviction on technicalities (e.g., the ” two-beer defence“); and
• Increasing the penalties for impaired driving – e.g., a minimum of 120 days in jail for a third impaired-driving offence.

Source: Ministry Of Justice

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