Acumen lawyer Paul Doroshenko explains:
New Canadian drunk driving laws let cops charge drivers for impaired driving even if their breathalyzer results are below the legal limit. Bill C-46 makes dramatic and ridiculous changes to existing drunk driving laws. Now if you score .02 on a breathalyzer six hours after driving, using back extrapolation police can add 10 milligrams per hour to your score — putting you above the legal limit.
The omnibus bill was criticized in its first reading. But lawyers did not have enough time to review all the consequences of this legislation. Lawyers, including Acumen Law’s Sarah Leaman and Kyla Lee, critiqued the bill for allowing police to back extrapolate even on clean breathalyzer scores.
Retrograde extrapolation allows cops to guess at a driver’s intoxication level by adding blood alcohol content to a breathalyzer sample taken after you’ve been driving. It’s not a reliable method of determining whether a driver was impaired. Leading experts in alcohol absorption say it’s a guessing game.
The government changed the bill in its third reading to require a score of .02 mg to use retrograde extrapolation. But Bill C-46 legislates a formula that could mean an innocent person is guilty.
But the bill goes further by changing drunk driving charges from over the legal limit at the time of driving to over the limit two hours after driving. This shocking change gives police using back extrapolation a greater window to adjust breathalyzer scores. If you have a drink after driving home, you would be guilty of impaired driving even though you weren’t operating a vehicle.
In a previous podcast, Paul Doroshenko talked about how dramatic changes by the Conservative government to drunk driving laws resulted in millions of dollars being spent litigating against badly written legislation. Likewise, this new omnibus legislation will have dire consequences for Canada’s legal system for years to come.
Bill C-46 is a nightmare for drivers and lawyers alike.The law will likely be overturned in the courts, but the process will take years and cost tax payers millions.