Breathalyzer Test Ruled Inadmissible

Written on Behalf of Affleck & Barrison LLP

Every year, thousands of people are charged with impaired driving in Ontario and many of those people are convicted based on breathalyzer readings taken at the scene of the accident. However, a recent decision by Justice Elinore Ready in Brampton, has called the integrity of breathalyzer use in Ontario into question, casting doubt on guilty verdicts in numerous other impaired driving and drive over 80 cases. The Brampton court acquitted a driver who failed a roadside breath test after hearing evidence from a former government scientist who said that breathalyzer tests are unreliable and the process used in Ontario is flawed.

The expert witness, Ben Joseph, formerly worked for the Centre for Forensic Sciences, which oversees the breath-test program in Ontario. Mr. Joseph spent three days testifying in court, giving evidence that the readings obtained by the Intoxilyzer 8000C – the only breathalyzer device in use in Ontario – were not reliable. Mr. Joseph testified that after studying the device’s maintenance and calibration records, he discovered numerous inaccurate results and other failures. Additionally, Mr. Joseph testified that since all of the Intoxilyzer 8000C models used in Ontario lack an established error rate, there is no way to be statistically confident about any given breath-test reading.

The judge agreed with Mr. Joseph, finding that a device that is not properly maintained could not provide complete results, and without an error rate, the device’s results are not reliable.  As a result, the charges against the defendant, Gurdev Singh, whose breath-test reading registered well over the legal limit, were dismissed.

This decision is important news for criminal defence lawyers in Ontario, as it will likely affect thousands of impaired driving cases across the province, and likely affect police practices. The Crown has filed an appeal of the decision.

To speak with an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.