In an Alberta first, a Red Deer judge has ruled that the constitutional rights of two people charged with impaired driving weren’t violated because a possible technical defence was limited by new legislation.
Chief Red Deer Crown prosecutor Anders Quist said on Tuesday that Judge Bart Rosborough’s decision upholds the legislation and is “good news because it’s a step towards Alberta becoming a safer place to drive and because people charged with over .08 have a harder time defending themselves by simply saying I didn’t drink that much.
“It’s just not going to wash anymore and we think that’s a change for the better,” Quist added.
Legislation passed in 2008 places the onus on the defence to prove that breathalyzer machines weren’t working properly when blood-alcohol readings were taken by police.
Previously, the defence could call an expert on blood-alcohol absorption rates and its expulsion from the body to theorize that readings may not have been as high as recorded.
It was then up to the judge to weigh the facts from the readings and the expert’s evidence to form his decision.
The defence theory is that the information in the machine could be flawed and Red Deer lawyer Kevin Sproule argued for a private expert to test the data.
The Stettler decision is the fifth in Canada upholding the constitutionality of the new legislation, Quist said.
Quist said the courts in different provinces don’t have to listen to each other.
“The only one court everyone has to listen to is the Supreme Court,” Quist said.
The court determined that the Crown didn’t have to turn over the internal computer of the breathalyzer machines for defence analysis.
Both Richard Albert Duff and Kevin Kondro of the Stettler area were convicted of impaired driving. Duff was fined $1,800 and had his licence suspended for 15 months while Kondro was jailed for 14 days and had his licence suspended for 15 months.
Sproule said earlier he wants to take the Central Alberta cases as far as the Supreme Court to rule if new legislation that limits technical defences in drunk driving cases is constitutional.
Sproule said on Tuesday that no decision has been made whether to appeal the two completed cases to the Alberta Court of Appeal.
There are five more cases to be heard in Red Deer provincial court regarding the new legislation.
Three more provincial court trials are set to be heard by Judge John Holmes on Oct. 20 in Stettler and two in Red Deer on Dec. 22 will be heard by Judge Darrel Riemer.
Both Holmes and Riemer have already ruled that defence testing of the breathalyzer wouldn’t make a difference.
jwilson@www.reddeeradvocate.com