Summary

31613

Martin Foster MacDonald v. Her Majesty the Queen

(Alberta) (Criminal) (By Leave)

Keywords

None.

Summary

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Criminal law (non Charter) - Evidence - Operation of vehicle with blood alcohol concentration exceeding legal limit - Statutory presumption of accuracy - Evidence to contrary adduced to rebut presumption - What type of expert and consumption evidence is capable of constituting evidence to the contrary under s. 258(1)(c) of the Criminal Code? - What is the legal impact on the statutory presumptions under s. 258(1) of the Criminal Code of opinion and consumption evidence that places the accused's blood alcohol level possibly over as well as possibly under the legal limit?

The Applicant was charged with driving with a blood alcohol concentration of 140 mg of alcohol in 100 ml of blood. At trial, he led evidence for the purpose both of tending to show that his blood alcohol concentration was under the legal limit at the time of driving and that the breathalyzer tests were inaccurate. The Applicant testified that he consumed six cans of beer spaced evenly between 7:00 p.m. and 11:30 p.m., the last beer being finished five minutes before being stopped at 11:35 p.m. His alcohol consumption was confirmed by a friend. After testing, an expert testified that the Applicant's elimination rate was 18.5 mg per cent per hour. The expert noted that this rate may not have been the actual elimination rate on the date in question. At the tested rate, the expert estimated that the Applicant would have had a blood alcohol concentration of 71 mg of alcohol in 100 ml of blood.

Lower Court Rulings

December 1, 2003
Provincial Court of Alberta

030255996P1
Applicant convicted of operating a vehicle with a concentration exceeding 80mg of alcohol in 100ml of blood contrary to s. 253(b) of the Criminal Code
August 31, 2004
Court of Queen’s Bench of Alberta

0302 55996 S1; 2004 ABQB 629
Summary conviction appeal dismissed
June 15, 2006
Court of Appeal of Alberta (Calgary)

0401-0297-A; 2006 ABCA 177
Appeal dismissed
 

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