Rick Vaive gets of Impaired Driving Charges

[BusaBob]

Not quite motorcycle related, but I was wondering if any of the lawyers in the house have any insight into this?
http://www.cbc.ca/news/canada/toront...d-driving.html

I thought the charge of 80mg of alcohol per 100mL of blood was an absolute liability offence. How is it then that he is let off of that charge when apparently he blew over 80? How does the fact that the Breathalyzer was administered 2 hours later mitigate that fact? The blood alcohol level can only go down, not up.

anyone?

[omnivore]

When you are famous and rich, it doesn't matter if you blew over the limit for mere mortals (80). If the accused feels fine to take the wheel, and doesn't think the six beers had any affect on his ability to drive, as Vaive had testified then it's all fine and dandy. The law is only for the rest of us.

Besides...he was coming from a charity event....proves what a nice guy he is, doing charity and all.

[OpenGambit]

From the article, i have no idea. I am not familiar with the case otherwise.

[bear22099]

Sounds like he got his advice from this site. Isn't the "fight every charge" in the hopes that something may go in your favour the mantra here? Or does that only apply to young motorcyclists?

[eastcoast_gsx]

Would he have been able to pass field sobriety test, if yes, put your fancy electronic blow device away sir. If no, get it out.

http://www.cprslaw.com/Field_Sobriet...ety_Tests.html

http://www.bayareaduidefense.com/dui...sobriety_test/

[BusaBob]

From the article, i have no idea. I am not familiar with the case otherwise.

The article suggests that the breathalyzer results were disregarded because 2 hours had elapsed between pull-over and administration of the breathalyzer, implying that too much time had elapsed for the results to be valid.

But this seems nonsensical given that blood alcohol gradually decreases over time. Again, isn't the charge of driving with over 80mg/100ml of blood an absolute liability offence?

Just wondering if I'm missing something here.

[mlc]

I know someone casually who claimed he beat a DUI because he was made to wait too long for his breathalyzer. His defense was that he was not impaired when he was pulled over, but did smell of alcohol, because he had consumed several drinks, quickly, before he left a bar. It was apparently argued successfully, that in his case, his BAC was rising over time, and it could not be proven he was legally impaired when pulled over.

[nakkers]

Not saying it's proven or correct but, you don't consume a drink and become instantly impaired. It requires time for the alcohol to be obsorbed into your blood stream. I'm not sure if there is any experts on the subject but, I suppose you could argue the accused was sober at the time of being pulled over and became impaired afterwards.

Also, we rarely hear of the cases of the common folk that have the same results because, they are not famous. So it cuts both ways.

[OpenGambit]

The article suggests that the breathalyzer results were disregarded because 2 hours had elapsed between pull-over and administration of the breathalyzer, implying that too much time had elapsed for the results to be valid.

But this seems nonsensical given that blood alcohol gradually decreases over time. Again, isn't the charge of driving with over 80mg/100ml of blood an absolute liability offence?

Just wondering if I'm missing something here.

generally, nothing that carries jail time as a penalty is an absolute liability offence... its possible that there are exceptions but i can't think of any.

I didn't see the 2 hr part, is that in the video?

[BusaBob]

generally, nothing that carries jail time as a penalty is an absolute liability offence... its possible that there are exceptions but i can't think of any.

I didn't see the 2 hr part, is that in the video?

Yeah, the 2 hours before testing part was stated by Calvin Barry in the video.

Sorry, i shouldn't have used legal terms without understanding them fully.

What I was asking for was clarification: I thought to be guilty of over 80mg, all that was required was to have a BAC of over 80mg. I didn't think there was any defense possible regarding intent or extenuating circumstances.

[invictus43]

Sounds like he got his advice from this site. Isn't the "fight every charge" in the hopes that something may go in your favour the mantra here? Or does that only apply to young motorcyclists?

Well played..

[invictus43]

Not saying it's proven or correct but, you don't consume a drink and become instantly impaired. It requires time for the alcohol to be obsorbed into your blood stream. I'm not sure if there is any experts on the subject but, I suppose you could argue the accused was sober at the time of being pulled over and became impaired afterwards.

Also, we rarely hear of the cases of the common folk that have the same results because, they are not famous. So it cuts both ways.

That would be my take on it..you pound 5 beers but they're not absorbed instantly. It takes time for them to make it through your system. I suppose you have to put some kind of timing in there to keep it reasonbly defendable.

[OpenGambit]

This is not an offence I am super familiar with so I don't know about any judicial consideration of the offence.

But generally - as it is a criminal code offence that carry a possibility of jail time, it is subject to defences that are mens rea related. ( I didnt' see any revealed in the article though).

a quick summary:
absolute liability - no proof of mental element required, only have to prove actus reus - example - speeding and almost all HTA offences
strict liabiilty - only have to prove actus reus, but subject to a due diligence defence - Example, HTA 172
mens rea offences - crown must prove both actus reus and mens rea - generally anything in the criminal code.

the combination of absolute liability and jail time is unconstitional. Therefore, it must at least be a strict liability offence.

Its possible that you may be confusing the provincial 0.05 ( which carries no jail time and is absolute liabilty ) to the Criminal Code 0.08.


With respect to the 2 hr difference, i would say that if the crown can not prove beyond a reasonable doubt that he was over 0.08 when driving, it would be a non-guilty verdict, that being said, I also don't see where the defence argued that. I would need a transcript, or at least more info, at first blush though, it looks like a botched case by the crown.


I am not 100 % confident about the foregoing comments, so if someone is more up to date than me on this by all means.

[coyo]

Not a lot of information is provided that would shed light on what occured during the trial.

However in going out on a limb and listening to his lawyer's comments about how Vaive acted on the breath room video, I'm guessing the argument was that the evidence required to form grounds that he was impaired was brought into question as his lawyer stated; "the audio video is like painting a picture of a thousand words, he wasn't drunk". If the grounds for an arrest for impaired were deemed insufficient (either due to lack of evidence or articulation) then the arrest is tossed and with it goes the authority to conduct a breath test and therefore the results of the breath test are tossed too.

As for the two hours; there is a presumption in law that recognizes that so long as the first test is completed within two hours of the incident that the results will be admissible as a fair indication as to the BAC at the time of the incident. If the first test is not completed within two hours then an affidavit is required from the Centre of Forensic Sciences determining what the BAC would have been at the time of the incident. If the first test was completed AFTER the two hours and the CFS wasn't involved then it could result in the test being tossed, but there was no mention of that in the news report.

[BusaBob]

That would be my take on it..you pound 5 beers but they're not absorbed instantly. It takes time for them to make it through your system. I suppose you have to put some kind of timing in there to keep it reasonbly defendable.

if i pounded back 6 beers, i'd probably hit the gate on the way out of the golf course. but hey, i'm asian :P

i know it takes a little time for the alcohol to get absorbed, but he'd already been driving for awhile after leaving the golf course (in Gravenhurst, stopped in Vaughan)


@ coyo: what you say makes more sense. now i really am curious to know what happened

[coyo]

if i pounded back 6 beers, i'd probably hit the gate on the way out of the golf course. but hey, i'm asian :P

i know it takes a little time for the alcohol to get absorbed, but he'd already been driving for awhile after leaving the golf course (in Gravenhurst, stopped in Vaughan)


@ coyo: what you say makes more sense. now i really am curious to know what happened

And I forgot to mention, it takes about 15-30 minutes for alcohol to be fully absorbed into the blood... depending on the person.

[Rob MacLennan]

The article suggests that the breathalyzer results were disregarded because 2 hours had elapsed between pull-over and administration of the breathalyzer, implying that too much time had elapsed for the results to be valid.

But this seems nonsensical given that blood alcohol gradually decreases over time. Again, isn't the charge of driving with over 80mg/100ml of blood an absolute liability offence?

Just wondering if I'm missing something here.

I don't know where the 2 hour limit enters into it. It may be a judicial standard, set in case law. I certainly found it mentioned in a couple of Supreme Court of Canada judgments. Section 254(2) of The Criminal Code of Canada states:

254 (2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

• (a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and
• (b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

Once the 'two hour limit' was exceeded, it then became an issue to be determined by other evidence. Vaive had a series of witnesses who could state how many drinks he had and his apparent lack of state, of inebriation, a virtual parade of character witnesses, and a fan in the judge.

[omnivore]

That defense shouldn't stand in this case, seeing as he had such a long drive facing him....it isn't like he was gonna go around the block.........regardless when he comsumed said drinks, they would of course be absorbed and affect his driving somewhere between the golf course and Oakville.

[coyo]

The 2 hour limit rests in case law and only speaks to what is required for the test results to stand on their own without any input from the CFS. The 3 hour limit is for grounds to SUSPECT to be formed to allow for the breath test demand at all.

A simple hypothetical example; Bob wrecks his car in the middle of nowhere. Both he and his passenger Dave are OK and Bob calls for a tow. The tow shows up an hour or so later (middle of nowhere) but is thinking that Bob may be drunk and calls police. Police show up an hour after that and by now Bob, fearing the police will discover he's drunk, has managed to get a hold of himself rather well and clear his breath... for now. Police deal with Bob and Dave for a while and both their stories jive, who was driving, etc... but some cracks start to form in Bob's sobriety. 2 1/2 hours after the accident, police form grounds to suspect that at the time of the accident, Bob had more than 80mgs of alcohol in 100ml of his blood and can then issue a breath demand. It takes an hour to get back to the detachment, another half hour to get a hold of his lawyer, and then the tests are administered, the 1st one completed 15 minutes after Bob spoke with his lawyer.

Total from incident to completion of the 1st test; 4:15.

This will fly, but the CFS will have to become involved.

Had it taken another half hour for the suspicion to evolve however...

I don't know where the 2 hour limit enters into it. It may be a judicial standard, set in case law. I certainly found it mentioned in a couple of Supreme Court of Canada judgments. Section 254(2) of The Criminal Code of Canada states:

254 (2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

• (a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and
• (b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

Once the 'two hour limit' was exceeded, it then became an issue to be determined by other evidence. Vaive had a series of witnesses who could state how many drinks he had and his apparent lack of state, of inebriation, a virtual parade of character witnesses, and a fan in the judge.

[BusaBob]

so it still begs the question: what's the rationale for this "2 hour" window?