A Sudbury man beat impaired driving charges this month – although he was found guilty on related charges – thanks to a legal defence known as the 'bolus drinking' defence.
The term, also known as the last drink defence, can be used in circumstances when a suspected drunk driver consumes a lot of alcohol just before getting into an accident or getting pulled over.
If there is a significant delay between the suspect's last drink and the admission of the breathalyzer, it can create reasonable doubt whether the alcohol had been absorbed at the time of the accident – and therefore, whether the driver was impaired when the actual incident took place.
Prosecutors can get around this problem by calling an expert witness who can give an informed estimated about what the suspect's blood alcohol level would have been at the time of the accident or arrest.
The Sudbury case dates back to June 2017, when the man left a Minnow Lake-area bar and headed home to Coniston. He admitted that he began drinking at 5 p.m., downing his last whiskey before getting in his vehicle and colliding with another vehicle at the corner of the Kingsway and 3rd Avenue.
The drive from the bar to the scene of the accident is about three minutes, the court records show, with police being called around 7:44 p.m. to respond, arriving at 8:11 p.m. The constable investigating the crash said he suspected drunk driving, did his own investigation and called for the breathalyzer at 8:24 p.m. after smelling alcohol from the suspect, noticing he had peed his pants and listening to him slur his words.
The driver gave roadside breath samples, and more back at police headquarters, all showing alcohol in his blood was well above the legal limit.
However, the judge ruled there was strong evidence the man had consumed quite of bit of alcohol minutes before the crash. Under legal precedent, this raised doubt about whether he was impaired at the time of the crash, since it takes some time for alcohol to be absorbed.
To get around this problem, the judge said the Crown could have called in an expert to testify about what the man's blood alcohol level was at the time of the accident, as has happened in other cases where bolus drinking was used as a defence.
“However, this was not done in this case,” the judge wrote. “Given the court’s concerns about the reliability of the expert’s opinion in this regard, the Crown has not proven beyond a reasonable doubt that (the suspect) had over 80 mg of alcohol in 100 ml of his blood at the time he had the care or control of his motor vehicle. (He) is found not guilty of this offence.”
He was found guilty, however, of operating a motor vehicle while impaired, dangerous driving, as well as two probation violations.
