Police clarify misunderstood aspect of new impaired law

By Jeremy Appel on January 17, 2019.

jappel@medicinehatnews.com @MHNJeremyAppel

The Medicine Hat Police Service issued a clarification Wednesday about recent changes to impaired driving laws in response to “misleading information” circulating on social media.

Prior to the changes introduced on Dec. 18, it was a criminal offence to operate a motor vehicle with a blood alcohol content greater than 0.08 per cent.

“Seems simple enough, however the way this law was structured it opened the door for some loopholes when it came time to prosecute these offences,” Traffic Sgt. Clarke White said in a news release.

A person accused of driving while intoxicated could be acquitted under the old law based on two defences — Bolus and Post drinking.

Bolus drinking occurs when an accused says they consumed a significant amount of alcohol prior to operating a motor vehicle, but were not over the limit when they began driving. By the time the accused gets to the police station, contacts counsel and takes a breath sample, their BAC would be greater than 0.08 per cent.

“This provided enough reasonable doubt that the accused did not have a blood alcohol concentration over 0.08 at the time of driving and he would be acquitted and escape criminal liability,” said White.

Post drinking occurs when a driver has been involved in a collision and after leaving the scene goes home or to a bar and drinks.

By the time police locates the accused, their BAC is greater than 0.08 per cent, but the defendant argues they were sober at the time of the collision.

This too creates reasonable doubt that would often lead to an acquittal.

The new impaired driving laws make it a crime to exceed 0.08 per cent within two hours of operating a motor vehicle.

So now, the time of the offence is when it’s proven through breath samples the accused blew over 0.08, although for an impaired driving charge, which is a separate offence that generally goes together with blowing over 0.08, police must still demonstrate the accused was operating a motor vehicle while intoxicated.

White says there are “very specific requirements that must be considered prior to police continuing their impaired driving investigation of a person who has consumed alcohol after ceasing to operate a motor vehicle.”

Police still must demonstrate the driver was impaired at the time of operating their vehicle, he added.

“The new wording does not give police authority to interfere with innocent people while they are having casual drinks just after operating a vehicle. The intent is not to force people to wait two hours after driving to start consuming alcohol,” White said.

“Instead, the new wording is designed to help with the rare cases where offenders attempt to obstruct the police investigation by consuming alcohol after driving.”

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