The ‘bolus drinking’ or ‘last drink’ defence can be used to defend a drinking-and-driving charge in Ontario if reasonable doubt can be raised that the accused’s recently consumed alcohol would not yet have been absorbed and did not exceed the legal limit, while they were driving. For the bolus drinking defence to be successful, the evidence of breath test(s) and drinking behaviour must be consistent with the other evidence presented at trial. Criminal defence lawyer, Karl Toews of Kruse Law, was recently successful in applying this defence which resulted in the dismissal of drinking-and-driving charges for a Lambton County woman.
The Ontario Ministry of Transportation defines Impaired Driving as the operation of a vehicle while under the influence of alcohol or drugs. Impaired Driving is a criminal offence that refers to the effect that alcohol has on someone’s driving; it requires an observable behavior such as slurred speech or sloppy driving along with evidence that the driver had been drinking or using drugs. Under the Criminal Code of Canada, the maximum legal blood alcohol concentration (BAC) for fully licenced drivers is .08, which is 80 milligrams of alcohol in 100 millilitres of blood. ‘Over 80’ is a criminal offence that refers to the actual measurement of alcohol in your system. Both Impaired Driving and Over 80 will result in an immediate 90 day driver’s licence suspension, $180 fine and impoundment of your vehicle for 7 days.
If you are convicted of Impaired Driving or Over 80, then the penalties are increased and you will suffer the long-term effects of a criminal conviction. A criminal conviction on your driving record will result in a huge increase in your vehicle insurance, a criminal record and may affect your ease of travel to foreign countries. If you have been charged with Impaired Driving or Over 80, it is in your best interest to fight these charges and have them dismissed, or at the very least, reduced to a non-criminal offence. Both charges can be dismissed if your lawyer can cast a reasonable doubt on the Crown’s evidence, such as use of proper police methodology, and blood and breath testing procedures.
In a recent case involving drinking-and-driving charges, a woman in her late 20’s was acquitted when her attorney, Mr. Toews (of Kruse Law), raised reasonable doubt that the alcohol she recently consumed would have impaired her driving. The woman had been arrested at an OPP RIDE checkpoint for drinking-and-driving, in October 2014. A breath test completed more than an hour after her arrest showed a BAC more than one-and-a-half times the legal amount.
In response to the woman’s testimony that she drank four beers and a shot of vodka in the hour before driving, a toxicologist testified that this was insufficient time for the alcohol to be fully absorbed into her bloodstream. Specifically, the toxicologist surmised that her BAC at the time of driving would have been less than half the legal limit, based on the scientific principal that no alcohol is absorbed in the first half hour of drinking. His conclusions also took the results of her breath test into consideration.
The woman further testified that she was dealing with a number of stressful events, which included the death of her boyfriend, and was drinking to deal with the emotional trauma. Mr. Toews noted that the findings in the case rested on the credibility of the woman’s testimony. Although ‘bolus drinking’ is not a commonly accepted defence, the judge decided to dismiss the charge, based on the toxicologist’s testimony as well as the woman’s behaviour and circumstances on the evening of the arrest.
For more information about this case, please refer to this Sarnia Observer article.