Justice Canada tweet suggests you can be charged with drunk driving two hours after driving: lawyer

VANCOUVER (NEWS 1130) — A tweet from Justice Canada is raising eyebrows as it suggests you can be charged with drunk driving even two hours after driving your car.

The now-deleted tweet shows a person barbecuing and another hailing a taxi.

“It’s summer time and the living is easy! Whether you’re sitting on a patio or having a backyard #BBQ, remember it’s against the #law to have a blood alcohol concentration over prohibited levels within two hours of driving. Know the limits. http://ow.ly/f4vj50uRLFY #Impaired Driving.”

RELATED: ‘Sweeping change’ to impaired driving laws increase police powers to breath test

Vancouver-based criminal lawyer Paul Doroshenko says this means police can charge someone who drives sober, but drinks during the two hours after driving.

“It’s the thing that we said was the big fear, and that people should be concerned about, and they said they would never do that, because that would be a gross overreach,” he says. “But then sure enough, we see a tweet from Justice Canada threatening Canadians with that very scenario.”

I saved it. For the Charter challenge. pic.twitter.com/RTvP9JQCyE

— Prairie Paul (@PaulDoroshenko) July 6, 2019

He says the tweet shows the government’s intentions with new drunk-driving laws ushered in last year.

Justice Canada, however, has sent out a correction, saying it’s a myth police can come to your house two hours after driving and demand a breath sample.

“As far as the law goes, under the old laws, drivers could argue they could beat an “over 80 mg” charge if they had several drinks right before driving because the alcohol wouldn’t affect them until after they drove. The new laws cover this situation and drivers can be convicted if they have a blood alcohol concentration at or over 80 mg within 2 hours of driving,” the department says in a statement.

It says the new laws are meant to stop the ‘intervening drink’ legal defense, which is an argument that drinking after getting out of a car was the cause of someone’s high blood alcohol levels. It points out the law does allow for limited exceptions, such as if the driver drank after driving and didn’t have reason to expect they would have to provide a breath sample. (Full statement below)

CORRECTION: We wanted to clarify the facts around a tweet that was issued yesterday relating to the 2 hour rule under the new alcohol-#ImpairedDriving laws. These laws aim to keep our roads safer and save lives. Find out more here: https://t.co/68c6VteXqc pic.twitter.com/Yqpr7FXCNy

— Justice Canada (@JusticeCanadaEN) July 6, 2019

Even so, Doroshenko argues the wording of the law is unjust.

“The issue here is that the government denied that this is what they were going to do, and then, only months down the road, one small seasonal change and we have them threatening to do exactly what they said they would never, ever do, and threatening Canadians,” he says.

“Good luck to Canadians who get trapped in this. It worries me greatly, and there will be people, obviously, if the government’s out tweeting it, they intend to do it, and there will be people who get caught up in this.

Justice Canada responds to concerns

The Department of Justice has issued a response following concerns raised about the tweet. Here is the full statement:

The Department of Justice takes the feedback of Canadians seriously. After posting the tweet on Friday, we noticed that it was resulting in some responses to the tweet that contained inaccurate information, while others asked for clarity about the tweet itself. The Department recognizes that the original tweet was leading to confusion, as demonstrated by some of the responses. Other responses were providing misinformation about the laws. The Department took corrective and responsive action by removing the tweet and replacing it with a clarification and links to more comprehensive online material on the subject.

As far as the law goes, under the old laws, drivers could argue they could beat an “over 80 mg” charge if they had several drinks right before driving because the alcohol wouldn’t affect them until after they drove. The new laws cover this situation and drivers can be convicted if they have a blood alcohol concentration at or over 80 mg within 2 hours of driving. This change was made to address this type of risky and dangerous behavior on our roads, to make roads safer and save lives.

The law has also changed to limit the “intervening drink” defence. By changing the timeframe of the offence (i.e., to being at or over the offence level within two hours), the argument that post-consumption alcohol was the cause of the high blood alcohol concentration is no longer relevant. Recognizing that there may be situations where the post-driving consumption of alcohol was innocently done, the legislation provided a limited exception, (i.e., the driver drank after driving and had no reason to expect that they would be required to provide a sample of breath).

It is worth noting that mandatory alcohol screening authorizes law enforcement officers to require a driver to provide a breath sample on an approved screening device, whether or not they suspect that the driver has recently consumed alcohol. This would only be done after the person has been lawfully stopped while driving a vehicle.

Thank you for the opportunity to clarify this important aspect of the law, the goal of which is to keep Canada’s roads safer.