Minutes after smashing his car into a Highway 401 exit sign, Howard Lee reached for the bottle. His airbags deployed, the Kingston-area man in his late-50s drove the short distance home and pounded back booze, according to court documents.
Now, that decision to imbibe has allowed him to successfully appeal a dangerous driving conviction. Lee was speeding along the highway late last September, when, according to his appeal decision, he collided with a sign at the off ramp going into Odessa.
His lawyer argued that because he got intoxicated after the accident, his breathalyzer results are irrelevant.
Last week, Superior Court Justice Robert F. Scott overturned Lee’s conviction. “It would be dangerous to conclude that an accused consumed alcohol prior to the event except in rare situations where other strong evidence was present,” Scott wrote in his judgment, ordering a new trial.
Lee’s black Lexus was seen driving at speeds of up to 135 km/hr, on the evening of Sept. 25, 2013, before it lost control, according to the appeal. After parking at home a short while later, Lee’s mother-in-law noticed him downing what she described in court as “probably vodka” from a plastic bottle.
When Ontario Provincial Police showed up, they smelled alcohol and demanded Lee take a breathalyzer test, the appeal said. His blood-alcohol readings were .08 and .077, within the Ontario Ministry of Transportation’s “warn range.”
Lee was charged but not convicted of impaired driving, though Scott’s decision said his alcohol consumption factored into the dangerous driving conviction. His appeal hinged on the “bolus” defence, which says his blood-alcohol level spiked because he was drinking just prior to the breath test. There’s not enough evidence, his lawyer argued, to show he was drunk while behind the wheel.
Toronto criminal lawyer Nicholas Charitsis, who specializes in impaired driving cases, told the Star Lee’s defence is not unheard of,
“There are circumstances like this, where people do end up consuming alcohol after an accident,” he said.
“If his lawyer was able to raise a reasonable doubt as to what his client’s blood alcohol concentration was at the time of driving, the judge must … err on the side of caution to find the accused not guilty.” Charitsis admitted knowledge of the law could result in its exploitation by impaired drivers.
“Had there not been any post-driving consumption of alcohol, it would’ve been a clear-cut case,” he said, adding he would never instruct clients on “how to beat the system.”
The bolus defence also applies to drivers who drink right before getting into a vehicle, and later argue the alcohol was still metabolizing while they were driving. Impairment aside, Justice Scott ruled Lee’s driving, a “marked departure” from the norm, warranted a new trial.
The penalty for a dangerous driving conviction is a one-year driving prohibition and a $1,000 fine. Neither the Crown attorney nor Lee’s lawyer responded to requests for comment.
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