At the risk of giving the impression that this is a drunk driving column, I feel like I need to do some housekeeping this week.
Several weeks ago, I wrote about an Esterhazy man who was convicted of having care and control of his vehicle with a blood alcohol concentration (BAC) over .08, "Esterhazy man convicted of drinking and sleeping," Yorkton This Week, October 24.
To recap, this individual had gotten plastered at the hotel, went outside to wait for a taxi, got in his vehicle, turned on the engine to keep warm and fell asleep."
When he was arrested, his BAC was .22. There was good evidence that the man had not intended to drive home, but Judge Ross Green said care and control is not just about intent or whether someone might accidentally put his car in motion. Someone with a BAC that high could very well wake up and forget his original intent.
The man was back in court December 13 for sentencing. He received a fine of $1,400 and a year licence suspension.
Three weeks ago, I wrote about a kid, also facing a care and control charge "Canadian justice does us proud," Yorkton This Week, November 28. This individual was arrested while sitting in his car in the parking lot of Yorkdale Central School. His BAC was measured at .10 and .09 in two separate tests.
At his first court appearance, he wanted to plead guilty, but Judge Green strongly suggested he should consult a lawyer. An aboriginal court worker volunteered to talk to him. When he came back, he reversed his plea, which Green accepted.
A week later, the young man appeared again before the judge, again without representation, and again to plead guilty. This time Green readily accepted the plea.
The now-convicted, driver's licence-free man should probably have been less hasty.
Last week, an almost identical care and control case came before the Court. In fact, the breathalyzer readings in this case were .11 and .10, just slightly higher than in the previous case.
I wasn't actually in court to hear the arguments put forward by the defence, but typically there is some kind of questioning of the inherent inaccuracy of breathalyzer tests. There are several things that can give erroneous results.
First, breathalyzers attempt to estimate blood alcohol levels through the breath. Second, they are machines that can suffer from mechanical defects and user error. Third, the calculations they use are based on a standard that may not be appropriate for all persons.
Defence attorneys also frequently argue intent as a mitigating circumstance. In care and control cases, the person is not actually driving the vehicle. Therefore, judges have a significant amount of discretion in determining, based on circumstances, evidence and testimony, the likelihood that the accused would have intentionally or inadvertently put the vehicle in motion.
Again, I don't know exactly what happened during this particular trial, but during sentencing, Green said he was not satisfied beyond a reasonable doubt that the man was, in fact, impaired. He also said he was satisfied, on the balance of probabilities, that there was little likelihood the man would have driven the vehicle and found him not guilty.
I want to make it clear that I am in no way advocating drinking and driving. Nor am I trying to encourage people to look for ways to beat the system, but I do not believe it is a black and white issue.
Many people do, however. Last week I attended a session of the Prevent Alcohol and Risk-Related Trauma in Youth (PARTY) program. I heard a lot of very good arguments for no-tolerance when it comes to alcohol use and driving. Cst. Hank Neumiller told the group of 15- and 16-year olds attending the PARTY session that the .00 standard required for them under the graduated licence program should apply to everyone.
One Crown attorney I spoke to thinks drinking and driving cases should involve an automatic guilty verdict.
Drunk driving is certainly one of the biggest problems we face in our society. The statistics speak for themselves. And behind each statistic is a litany of ruined lives.
There are plenty of countries around the world that have adopted zero-tolerance laws. Just as an example, a reading of just .02 in Sweden carries a maximum penalty of six months incarceration. A .10 reading involves mandatory prison time for up to two years.
Perhaps the time will, and should, come that Canada toughens up the law. In the meantime, happy holidays and be safe.
