Quote:
Originally Posted by RougeUnderoos
Is there any chance that cockamamie idea would actually fly? I don't know, but I doubt it.
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Jolinar is, I think, getting at a defence to impaired driving based on evidence to the contrary. In short, there are all sorts of technical assumptions and averages employed by the breathalyzer to obtain a BAC. It assumes, for example, that the accused has an average alcohol elimination rate. These rates actually vary from person to person and can vary from time to time in the same person.
Evidence to the contrary is usually evidence an accused would lead through an alcohol elimination expert. The expert would test the accused's elimination rate under laboratory conditions and attempt to determine what a person's real BAC would have been at the time of the offence. Usually, the expert will come up with a range of possible values (e.g., .06 to .09).
As far as Jolinar's hypthesis goes, doing that will probably make getting an accurate reading problematic. However, because of a couple of assumptions in the Criminal Code, if the breath sample is obtained in accordance with the provisions of the Code, then an accused drinking a bunch of alcohol after the alleged driving offence is by itself not considered evidence to the contrary: CC 258(1)(d.1)
http://www.canlii.org/en/ab/abpc/doc...003abpc26.html