DON’T DRINK AND DRIVE … OR, IF THE GOVERNMENT HAS ITS WAY, DON’T DRINK FOR TWO HOURS AFTER DRIVING EITHER

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DON’T DRINK AND DRIVE … OR, IF THE GOVERNMENT HAS ITS WAY, DON’T DRINK FOR TWO HOURS AFTER DRIVING EITHER

DON’T DRINK AND DRIVE … OR, IF THE GOVERNMENT HAS ITS WAY, DON’T DRINK FOR TWO HOURS AFTER DRIVING EITHER

With upcoming legalization of marijuana, the government proposes new draconian measures which would effectively lower the permissible blood/alcohol level, eliminate previously available defence of bolus drinking or last drink defence as well as dispense with current minimum constitutional prerequisites to searching the motorists by obtaining their breath samples into an approved screening device (roadside testing).

First of all, the offence of driving with more than legal limit which used to be called “over ‘80” will now be called “’80 over”.  The reason for it is that under the law as it stands now, when your intoxilyzer breath readings are obtained, they are truncated to the nearest lower number ending with 0, i.e. if you blow 123, your result will be truncated to 120, if you blow 99, the truncated reading will be 90 and so on and so forth.  So, if you blow anywhere between 80 and 89, the result will be reported as 80 and since the offence is “over ‘80”, you will not be charged.

The new legislation, however, will punish those who blow 80 or over which effectively lowers the blood alcohol level from 89 to 80.  At the end of the day, this is not the biggest problem with the new legislation.  After all, the government can make the permissible blood/alcohol lower to improve road safety.

The real problem is that in order to prevent the legitimate defence of bolus drinking, the new legislation prohibits a motorist to have blood/alcohol limit of 80 or over for TWO hours after such motorist finished driving unless he or she did not reasonably expect to be subjected to breath tests.  What does it mean?  At this point, nobody knows.  I suppose that if you drove home, parked your car for the day, opened a bottle of wiskey and downed a few drinks, you should be okay because why the heck would you expect to be subjected to breath tests in this scenario.  But what if you drove to a restaurant, had dinner with friends which included alcohol and do not really intend to drive home whether because you have a designated driver or because you can leave the car in the parking lot of the restaurant and take Uber home, what then?

This part of the legislation is nothing more but a clumsy attempt to prevent people from relying on bolus drinking or last drink defence and like any attempt to prevent something that does happen, it looks and sounds absurd and may lead to really odd results.  In this particular case, the new law criminalizes something which happens after driving (as long as two hours after) which is ridiculous and hopefully unconstitutional.

You may wonder what bolus drinking or last drink defence is?  Well, the alcohol gets absorbed in human body gradually, reaches its maximum concentration based on your weight and amount consumed and then, also gradually leaves your system.  So depending at which point of this continuum you get caught driving, your blood/alcohol level at the time of driving (which is presently the relevant time for the purposes of over ’80 charge) may be within the legal limit, however, by the time you get to police station and are subjected to breath tests, your blood/alcohol level climbs above the legal limit.  This defence arises in cases of consumption of large quantity of alcohol within approximately 15 minutes of being stopped by police and such cases do happen.  The last drink defence is a variety of bolus drinking defence.  Say, you have three beers which for you translate into a blood/alcohol level of 75 mg in 100 ml of blood (within the legal limit), but then you consume yet another beer before leaving the bar and within 15 minutes of this last drink, get stopped by the cops.  At the time of traffic stop, this last drink has not yet been absorbed into your system, so you are still driving with 75 mg/100 ml of blood.  By the time your samples are taken though the fourth beer is fully absorbed and you blow 100 which is above the legal limit.

So what the proposed legislation is trying to achieve is to eliminate this defence by shifting the relevant time until after the driving is done which is mind buddling.  It seems that a fairer way of dealing with the issue would be to reduce the permissible blood/alcohol level all the way to 0.

The only exception envisaged by new legislation would be if: (i) the accused consumed alcohol after ceasing to operate a motor vehicle; (ii)after ceasing to operate the motor vehicle, the accused had no reasonable expectation that he or she would be required to provide a sample of breath or blood; and (iii) the accused’s alcohol consumption is consistent with the blood/alcohol level as determined by breath sample analysis with an approved instrument or with a blood sample analysis and with a blood/alcohol level which was less than 80 mg of alcohol in 100 mL of blood at the time when the accused was operating the motor vehicle.  Sounds impossible?  Because it probably is.

The most important point is that the government is willing to go so far as to criminalize having blood/alcohol level of 80 mg or over within two hours after cessation of driving to eliminate otherwise legitimate defence.

If this legislation will pass, in many cases, part of defence will be to challenge its constitutionality which makes it ever more important to have an experienced impaired driving lawyer on your side.

Author: Ernst Ashurov

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