Defense of a DUI Breathalyzer Charge by an Ontario Attorney
What you'll learn
- Build a comprehensive DUI excess alcohol defense, compatible with Bill C-46 (coming in 2018), based on improper operation of the instrument's ambient fail system or the control check system, both of which compromise the scientific reliability of the measurement result pursuant to R. v. Lam.
- Memorize the protocols and sequences that should be followed before and during an Intoxilyzer® 8000C evidentiary breath test in Ontario
- Improve criminal law litigation skills related to over 80 charges
- Prepare for cross-examinations of the qualified technician and CFS expert
- Cross-examine a qualified technician as to the protocol for conducting an evidentiary breath test
- Cross-examine a CFS expert on the limitations of automatic systems on approved instruments
- "Those two courses are amazingly thorough and cover the most basic requirements from telephone call through interview and beyond to the skills required to do even a basic DUI case with comfort and back up support." (Ray Kuszelewski, Halifax, NS)
- Before taking this course you should obtain the most recent version of the Recommended Standards of the Alcohol Test Committee of the Canadian Society of Forensic Science. Please visit the CFS web site and download the most recent Operational Procedures, Best Practices, and Equipment Evaluation Standards. or Best Practices of the ATC.
- In Ontario the most important documents for use in cross-examination of qualified technicians are the Intoxilyzer® 8000C Training Aids published by the Centre of Forensic Sciences in Toronto. You can obtain a copy of the current Training Aid by writing directly to the CFS Toxicology Section usually in the context of a disclosure request where you cc the Crown. Earlier versions of the Training Aid will be useful for cross-examining a breath tech who was trained several years ago.
Scientific reliability of the measurement result is the only reason why Canada's per se (we call it "over 80") drinking and driving law, is saved by Charter section1, and therefore constitutional. According to the Supreme Court of Canada, in R. v. St-Onge Lamoureux, that was Parliament's purpose in enacting the presumptions in section 258(1)(c) - to give the results a weight consistent with their scientific value:
"According to the scientific evidence on which Parliament relied, if the instrument functions properly and all the relevant procedures are followed, the results should be reliable. It is therefore logical to provide that the
results can be challenged only by raising problems that can be objectively identified and that relate to possible deficiencies in the instrument itself or in the procedure followed in operating it." (paragraph 38)
This course familiarizes defence lawyers in Ontario, Canada with the most important protocols used by qualified technicians in over 80 mg / 100 mls blood alcohol concentration cases. If your client has been charged with excess alcohol driving or care or control you need to know how breathalyzers work. In preparation for cross-examination of breath techs and government forensic scientists defense attorneys need to know Henry's Law and its application to evidentiary breath testing equipment, particularly the Intoxilyzer® 8000C approved instrument used in Ontario. This course examines the Quality Assurance (QA) and Quality Control (QC) measures documentation kept by provincial and municipal police. The course has video lectures accompanied by Quiz questions that will help teach you how to prepare for Court. Any defence lawyer who is defending an over 80 charge in Ontario should take this course.
Price includes HST.
Who this course is for:
- This course of study is designed for use by defence lawyers only. It is NOT approved by the manufacturer, by the Alcohol Test Committee, by the Centre of Forensic Sciences, police services, or any government authority. Should this course of study be used by anyone other than a defence lawyer in Ontario you run the risk that the information contained herein may be unacceptable for your purposes. Please note that the public should NOT attempt to use any of the contents of this course as evidence in Court.
- Colleagues who are members of local Crown Attorney's Offices are welcome to make use of this course. Basic knowledge of the operation of an Intoxilyzer® 8000C is essential for both examination-in-chief and cross-examination of a qualified technician in Ontario.
- Police officers who are or who intend to become qualified technicians are welcome to make use of this course. This course may help you to anticipate questions that will be asked by defence lawyers. Please note that much of the content of this course may contradict your training by the Centre of Forensic Sciences or police training.
I am a retired lawyer with a criminal law and drunk driving defence practice in the Greater Toronto Area between 1979 and 2022. I have prosecuted and defended a great number of impaired driving and over 80 charges. I have a special interest in forensic science as it relates to approved instrument breath testing and forensic metrology. I own both evidentiary instruments and screening devices. I present tutorials for defence attorneys at my office in Mississauga, and elsewhere in Ontario and Quebec. I have presented at Law Society of Ontario and other Bar association seminars in Ontario and at a conference in the United States. I know what technical defences are likely to be successful and which ones are not likely to result in acquittal. Most importantly, I have a very good understanding of the limitations of these instruments. I know when they are likely to make mistakes. They are not infallible.