Impaired Driving is where a person operates and has care and control of a motor vehicle or vessel while their ability to operate is impaired by drug or alcohol. The offence can be made out even where there is only a slight impairment, the burden is on the Crown to prove beyond reasonable doubt that the person’s ability to operate was impaired at the time of being stopped.
Proof of finding a person impaired is based on observational evidence, such as, balance, fine motor skills, coordination, speech, physical movements and reactions.
Over 80 offences are committed when a person operates a motor vehicle while having a blood alcohol concentration over 80mg over 100mg of blood. The test for Over 80 is by testing a breath sample or a blood sample.
Techniques to defend an Over 80 offence is to question the testing of the instruments used to test samples, to challenge the timing and readings of the sample, to question the drinking pattern of the individual and the impact on the sample results and the overall accuracy of the sample reading.
When an individual is stopped whilst operating a motor vehicle and is given a valid demand, they are required to provide a breath sample unless they have a reasonable excuse not to do so. If there is no reasonable excuse and the individual refused to provide a sample, they will be charged with an offence.
The key to defending a Refusal to provide a sample charge is to determine if there was a valid demand and to further challenge if there was a reasonable excuse for refusing.