The Sacred Breathalyzer

Posted by Lawrence Taylor on April 20th, 2008

I’ve written repeatedly in the past about the inaccuracy and unreliability of the various breath machines used to estimate blood alcohol concentrations.  See, for example, How Breathalyzers Work (and Why They Don’t), Why Breathalyzers Don’t Measure Alcohol and Breathalyzer Inaccuracy: Testing During the Absorptive State.  I’ve also pointed out how our laws now ignore scientific truth and presume that the blood-alcohol level at the time of testing was the same as when driving, say, three hours earlier.  See How to Overcome Scientific Facts: Pass a Law.  And I’ve written about how our laws now presume guilt based upon a reading over .08% from one of these machines — how these devices have become judge, jury and executioner.  See Whatever happened to the Presumption of Innocence?.

Well, at least a citizen accused of drunk driving can call his own expert from the local university to testify as to alcohol metabolism and the probable true levels of alcohol in the accused, right? 

That may now be disappearing, too….


Supreme Court Strikes Blow

to ‘Two-Beer Defence’

Toronto, April 17 — The Supreme Court of Canada dealt a blow Thursday to the so-called “two-beer defence” – used by individuals accused of impaired driving – in which defence toxicology experts use their own measurements to try to refute a breathalyzer reading taken by police.

A 7-2 majority said Thursday that allowing defence experts to estimate the amount of alcohol an accused person had in his or her system when arrested is an unreliable exercise that depends on too many variables.

“To admit such a defence would obviously fly in the face,” of Parliament’s desire to bring drinking and driving under control, Madam Justice Louise Charron said, writing on behalf of three other majority judges…

In a testy rebuke to the majority, Madam Justice Marie Deschamps said: “I find it highly troubling and offensive for a court to impeach an expert’s credibility by dismissing post-offence testing, without an indication that the testing conditions were inadequate, on the basis that it does not adequately replicate the conditions at the time of interception.

“Testing conditions are in the domain of experts, not of the courts,” she said, writing on behalf of Mr. Justice Ian Binnie. “Courts need evidence in order to question the weight of expert testimony…”

Defence toxicologists typically administer specific amounts of alcohol to the subject and measure the rate at which their body absorbs the alcohol. Their evidence ultimately covers a range of possible blood alcohol concentrations, taking into account the amount of alcohol consumed, the pattern of drinking, and the accused’s age, height, weight and gender…

  
Amazing.   Let me repeat the reasoning of the Court:


“To admit such a defence would obviously fly in the face,” of Parliament’s desire to bring drinking and driving under control, Madam Justice Louise Charron said, writing on behalf of three other majority judges…


In other words, the defendant is not permitted to question the Breathlayzer results — because it interferes with efforts to combat drunk driving.  Think about that.

In view of past decisions from the U.S. Supreme Court, and the political influence of MADD, how long do you think it will be before we follow the Canadians?

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