In July 2008 many criminal lawyers were shocked by amendments to the Criminal Code which effectively eliminated the most common defence to charges of driving with alcohol levels in excess of the legal limit (“over 80”). As a result of the new law it is no longer possible to contradict a breathalyzer result by simply presenting testimony as to the amount of alcohol consumed together with the result of a calculation by an expert witness indicating that the alcohol level would have been less than the legal limit despite the  breathalyzer reading. It is now necessary to show an error in the operation of the machine, which is impossible given the lack of access to it.

The first series of cases challenging the new law are scheduled to be heard soon and it will be interesting to see what effect the court decisions will have on the application of the law. A glut of appeal cases can be foreseen if a first instance decision invalidates the amendments.