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On April 12, 2012, the Toronto Star ran an article (http://www.thestar.com/news/crime/article/1160460--former-maple-leaf-rick-vaive-not-guilty-of-impaired-driving) covering the acquittal of former Toronto Maple Leafs captain, Rick Vaive, and staying true-to-form, its readers were not short of comments and/or critique on the trial's outcome. As I read through the comments section at the bottom of the article, I began noticing that the majority of readers simply could not understand this "two-hour" rule. Put simply, the "two-hour" rule requires police to administer the first Intoxilyzer breath test back at the station within two hours of the time of driving. In the majority of cases, the "time of driving clock" begins ticking when you get pulled over, but there are scenarios where that is not the case, like if you've already made it home before the cops show up at your door. If the tests aren't taken within that two hour time-frame, the Prosecution can't directly rely on the readings. I'll explain in a moment what I mean by that. In any event, as I continued reading through the comments it became quite clear that people's confusion and anger with this rule was not unfounded, as the rule makes absolutely no sense without the proper background information. Here's what one bewildered reader wrote:
Very Lucky !Why have alcohol breath testers ??? The "FACTS" were he blew over, PERIOD...end of story !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Who cares about any other stories of being tired or what "he" says he consumed on that day or how he acted on video at the station later... If the judge is going to ignore the "FACTS" of the breath machine and its readings then why have them ??? It obviously pays to hire a slick lawyer and be a celebrity.... Anyone else is convicted and goes to jail, FACT !!! This judge has certainly not done our youth any favors in setting examples for ones actions, especially when it comes to drinking and driving !!!! Next time i get pulled over and asked if i have been drinking ? You bet i have officer !!!! You think i'am going to drive sober with all these drunks out here...
I wish I'd been around when he wrote that so I could ask him how he really felt, but I digress. No, his frustration is completely understandable. The laws governing impaired driving and driving with an excess blood-alcohol concentration is notoriously complex and riddled with exceptions, and exceptions to the exceptions. Here's what I wrote back:
REPLY @ northernguy10So you wanna know why there's a law requiring the tests to be taken within two hours? I'll explain: the Criminal Code allows police to administer the breathalyser at some point AFTER the time of driving. In most cases, this will be between 1 to 1 1/2 hours after the suspect was pulled over. Why is this relevant? Well, it's simple. The criminal code allows police and the Crown Attorney to read back the suspect's blood-alcohol concentration to the ACTUAL TIME OF DRIVING. So, in other words, the Criminal Code provide's law enforcement with the benefit of a short cut in the form of a "legal fiction", because we all know that an individual's blood-alcohol concentration is NOT the same 1 1/2 to 2 hours later after the time of driving. Remember, it's not a crime to be drunk 1 1/2 to 2 hours after driving. It's a crime to be drunk/over the limit at the time of driving. Now, you may be thinking "well, wouldn't a suspect's blood-alcohol concentration be higher at the time of driving than it would be 1 1/2 to 2 hours later?" The answer is: not necessarily. It's entirely dependant on when the suspect began consuming alcohol. For example, it is entirely possible for a person to chug 10 shots, get in the car, drive the 10 minute ride home and still not be impaired/drunk because the alcohol has not been absorbed by his/her body yet. However, if you were to take that same individual's blood-alcohol concentration, say, an hour after, he/she would most likely blow over the limit. So, the rule makes perfect sense: if law enforcement is to rely on the benefit of this "legal fiction", then they've gotta follow the rules. The rule in this case is that it's gotta be taken within 2 hours. Otherwise, they'll need to use a toxicologist to read back the readings, but that isn't nearly as convincing or as conclusive.
Now, I sort of glossed over the whole toxicologist part at the end there, but what I meant by that is this: if the tests were taken within the prescribed two hour time-frame, then the results of those tests are conclusive. It no longer matters what a suspect or his/her friends say with respect to how much alcohol he/she consumed that night. The results of the breath tests override any viva voce (oral) evidence given at trial. However, if the tests were taken outside the prescribed two hour time-frame, then, as I said earlier, the Crown Attorney cannot rely directly on the results of those tests, but rather, must call a toxicologist at trial to testify. The toxicologist's job will be to analyze the test results and give an expert opinion on what the suspect's projected blood-alcohol concentration would have been at the time of driving. The conclusion that a toxicologist may reach with respect to the suspect's blood-alcohol concentration at the time of driving may differ markedly from the test results produced by the Intoxilyzer machine. Why? Well, first and most obviously is because the toxicologist is determining the suspect's blood-alcohol concentration at the actual time of driving, as opposed to some time after that (usually 1 to 1 1/2 hours) which is what the breath samples are reflective of. The toxicologist will most likely determine whether the suspect was in the "absorption phase" or the "elimination phase". In the latter phase, the suspect's body is still absorbing the alcohol he/she consumed earlier, whereas in the former, his/her body has begun eliminating the earlier-consumed alcohol from their body. Why is this relevant? Well, it's simple: if the suspect consumed a large quantity of alcohol immediately before driving, then the suspect's body would likely be in the absorption phase, which means that there is a good possibility that his/her peak blood-alcohol level is yet to be reached. This is known as the Bolus Drinking Defence. This defence allows the suspect to testify him/herself as to the time and quantity of consumption, as well as have others who were with them testify on the same. In the absence of the conclusiveness of the breath tests (because taken outside two hours), the door is swung open to alternative/competing evidence which may (logically) contradict the results of those tests.