Impaired Driving; Driving over 80


Was acquitted of impaired driving but convicted of driving over the legal limit of alcohol. Appeal was asked for and granted; the guilty verdict was quashed; an acquittal was entered.

Case Details

The client was involved in a traffic accident. The police were called and arrested the client. They brought him to the station where they submitted him to a breathalyser. The allegation was that the breathalyser results extrapolated back to the time of driving meant that the client was over the legal limit. The client was presumed innocent and challenged this. The judge disagreed and found him guilty.

The client asked for an appeal on the opinion that the verdict for the second count (Driving over 80) was unreasonable and couldn’t be supported by the evidence. This is not a question of the law, but it involved a reconsideration of the facts in relation to the unreasonableness, which is a question of the law.

After reviewing the evidence given at trial and looking at the testimony of the witness (which was unreliable as he couldn’t remember the exact time of the accident or the exact time the police officers arrived at the scene), and seeing in the prosecution’s evidence that the cessation of driving a maximum of two hours before the first breath sample was taken rested on the shaky testimony of the witness, David Anber determined that it was an error of law. He said that an acquittal should be granted.


The parties both admitted that the two-hour precondition of the presumption of identity required proof beyond a reasonable doubt.
Also, the trial judge’s reasons did not show whether the proper standard of proof was applied to the two-hour precondition, nor if all the evidence was considered and weighed before convicting the client.
They agreed that the delivery of insufficient trial reasons constitutes an error of law.

Therefore, the court granted the appeal, quashed the guilty verdict on the second count, and acquitted the client on the second count without costs.

Read the full case here.

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