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Criminal & DUI Lawyers, including:
Three Former Crown Prosecutors

What Happened To The Last Drink Defence In Canada?

I want to talk today about the last drink defence.  You’ve been charged with blowing over the legal limit, and you’ve come to our office and retain us, and you say, “Mike, I had some shots in say fifteen minutes, before I drove, thirty minutes before I drove, about ten minutes later, the police pulled me over, and I, you know, failed the roadside breath test and blew, say 110 at the police station”. Well this use to be a very valid defence.  You could raise the defence that, “look, the drinks I had in my blood stream, at the bar, those last two or three shots, were not absorbed, into my blood stream, they were still in my stomach at the time I was pulled over by the police”.  The reason I failed the Alco-test, is I had mouth alcohol, which does false positives on the roadside tests, and then by the time I provided the breath samples, that’s the real breath test at the station, the Intoxilyzer tests.  I did a reading of 110. In other words, the two or three shots rose my blood alcohol to 110 even though they weren’t in my blood stream. And you’d hire a toxicologist, and the toxicologist would do a bunch of calculations and you’d win your case. We won those cases, very consistently, especially with low readings, and especially with drinking scenarios where you had receipts from the bar, proving that you had those shots. 

Now unfortunately, parliament got rid of this defence in 2018, so that defence is no longer valid. They got rid of many defences, for DUI but that’s one of them that was brought in 2018, and you could no longer bring the last drink defence.

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