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Police opinion on impaired driving could count as that of experts

Determining whether a driver has been impaired by alcohol is usually a straightforward matter. By administering a breath test, a police officer can tell with some certainty if an individual has a blood alcohol level that exceeds the legal limit in Ontario. However, what happens in cases in which impaired driving is believed to be the result of drug use?

Currently, there is no established legal limit in this province for concentrations of the active components of drugs in the blood. Additionally, there is no device to measure such levels, even if a limit did exist. Right now, officers trained as Drug Recognition Evaluators provide the only evidence to the courts when drivers are suspected of being under the influence of drugs.

In 2009, a man was charged by an Ottawa police officer with impaired driving after causing an accident. A DRE determined the man was high at the time. This opinion was admitted into evidence, but the man was acquitted based on reasonable doubt. The Crown submitted an appeal, and in a second trial, the testimony of the DRE was dismissed by the judge, and the defendant was acquitted a second time.

A second appeal was submitted, and the Ontario Court of Appeal determined that federal legislation automatically makes the testimony of a DRE an expert opinion. The man was granted leave to appeal the decision to the Supreme Court of Canada, which he did on Oct. 13, 2016. The decision of the court may impact all future cases of drug-impaired driving cases.

Impaired driving while on drugs is still a legal grey area in Ontario, at least as far as what constitutes an expert opinion. If a person is arrested and accused of driving under the influence of drugs, obtaining legal counsel should be his or her chief priority. A criminal defence lawyer who understands the impaired driving laws in this province may be very helpful in preparing a proper defence.

Source: National Post, "Supreme Court to rule if police opinions about whether a driver is high should count as expert evidence", Ian MacLeod, Oct. 11, 2016

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