Court: Trial begins for Peterborough youth accused of drunk driving

Source: Peterborough Examiner

ONTARIO - An OPP officer explained, and was challenged about, police protocols and maintenance of breathalyzer machines on the first day of the trial of a youth charged with drunk driving, yesterday.

An 18-year-old is charged with driving with a blood-alcohol level over the legal limit in August 2008.

He was a youth at the time and can't be named under the Youth Criminal Justice Act.

Before the case was sent to trial, the youth's lawyer Nathan Baker argued his client's charter rights were being violated because of amendments to the Criminal Code that came into effect in July 2008.

The Tackling Violent Crime Act stiffened fines and sentences for impaired driving.

It also eliminated the vernacular "two-beer" defence in impaired cases, allowing only scientifically proven defences be used as evidence to avoid acquittals on technicalities.

Also called the "Carter defence" or "evidence to the contrary," defendants could call evidence as to how much alcohol they had consumed prior to driving.

An accused must now prove the police breathalyzer malfunctioned or was improperly used and resulted in a reading above the legal limit.

Baker has argued the amendments force defendants to prove they aren't guilty and take away their presumption of innocence.

In October, Madame Justice Karen Johnston said she couldn't rule on the constitutional validity of the amendments outside of a trial and "shouldn't be decided in the absence of evidence."

Johnston is presiding over the trial.

Court heard from two OPP officers about the night of the boy's arrest on Aug. 27-28, 2008.

He was given a breathalyzer test when stopped by police and two at OPP headquarters.

The youth failed all three tests, court heard.

Const. Shawn Filman, a breathalyzer technician, testified about procedures to ensure the Intoxilyzer 5000c, the breathalyzer used on the youth at OPP headquarters, meets the right standards.

Calibration and diagnostic checks are done before a breath test is administered.

After the "minimum time" has elapsed, a second test is done, Filman said.

Court heard that the youth's first reading was 107 milligrams of alcohol in 100 millitres of blood, and the second test registered 103 mg of alcohol in 100 ml of blood.

Baker challenged how officers can ensure the machine works properly and how some repair invoices didn't always include "certificates of calibration."

Baker also pointed out that forms used to keep track when the solution used in the machine is changed, don't indicate which machine has been changed.

There is only one 5000c at Peterborough County OPP, Filman said.

Filman said the testing solution is changed once a week, typically every Sunday, and the empty bottle with log information is kept next to the machine.

He also said the solution is changed when the calibration fails and when the machine is moved.

It's sometimes brought to the hospital for testing, court heard.

Filman said "I don't recall" and "it's possible," when Baker asked if the machine left OPP headquarters the week of the youth's arrest.

Baker presented an invoice for work done on the machine in December 2005, which included a warning that the keyboard, breath tube and power bar must be disconnected before the machine is moved.

Filman said he didn't know if the warning was included because there had been a problem with the machine.

Baker also asked about how the machine tracks errors.

Filman said the manufacturer's manual only gives "corrective action." He didn't know if the OPP has software to download internal data, if it exists.

The officer also said, a few times, that he recently attended a course on a newer breathalyzer machine and needed to check before answering some questions. He was allowed to consult the manufacturer's manual.

The trial has been adjourned until March 30 for the Crown to find another witness.