Supreme Court lays framework for drunk driving defence by limiting breathalyzer records

Published: October 27, 2018



The Supreme Court of Canada has set a legal framework that will have wide consequences for motorists trying to defeat a drunk driving charge.

Canada’s top court released two decisions on Friday. Both change how an accused driver can get the maintenance log of a breathalyzer. Defendants in impaired driving cases typically request these logs to question if the device was working when they were stopped.

Breathalyzer logs are usually stored by private companies or directly by police forces. Many times, a defense lawyer will request the records even if they are not related to the case.

Under the new Supreme Court framework, accused drivers can only get logs if they can prove the records will be relevant to their case. In a near-unanimous ruling, the high court agreed with the Crown. It states the records shouldn’t have to be handed over in all circumstances.

The court says records do not necessarily show how a breathalyzer works when the driver is tested. Instead the logs show if the device was well maintained. “The only question that must be answered is whether the machines were operating properly at the time of the test – not before or after,” Justice Malcolm Rowe wrote.

“The time-of-test records directly deal with this. The maintenance records, according to the expert evidence, do not.”

One Less Option

Justice Suzanne Cote was the single dissenter in the vote. She joins defence lawyers in criticizing the limitations of breathalyzer records. Lawyers believe they now have one less tool for drivers when they answer a drunk driving charge.

Ottawa-based lawyer Michael Spratt describes the ruling as “highly instructive”.

“It, I think, does tilt the slope so that accused will have an uphill battle to make the arguments to get the records of those machines as well,” Spratt told Canadian Underwriter.