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DUI As Soon as Practicable

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Breath tests are obviously never seized at exactly the same point in time as the moment when the alleged drunk driving occurred. The analysis of breath at the time of the breath tests will almost always have a different result than the subject's true blood alcohol concentration at the time of driving, because of the phenomena of absorption, distribution, and elimination of alcohol in the human body over time. Different jurisdictions use different methods to solve this problem. How does your jurisdiction deal with this problem? Some jurisdictions require the breath tests to be taken "as soon as practicable".  

 

 

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Canada                                                      Edit this Entry                     Cases for this Canada paragraph

In Canada, section 258(1)(c) of the Criminal Code provides a shortcut for the Crown in proving that the blood alcohol concentration of the accused at the time of the breath tests is equal to the blood alcohol concentration at the time of driving. A condition precedent to that shortcut, known as the presumption of identity (actually we also have another presumption of identity in 258(1)(d.1)), is:

"each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,"

"as soon as practicable" does not mean as soon as possible.

Canada                                                      Edit this Entry                     Cases for this Canada paragraph

In Canada, section 254(3) of the Criminal Code of Canada authorizes a breath Demand made "forthwith or as soon as practicable" upon formation of the belief on reasonable and probable grounds that the person has committed an impaired driving or over 80 offence in the last 3 hours. For an approved instrument breath Demand to be lawful there should not be a time gap between formation of that belief and the actual Demand. Sometimes police officers will make an arrest for impaired driving or over 80 but forget to make the breath Demand until much later.

 

 

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DUI Law: Words, Concepts, Issues, Terminology, and Ideas

DUI Law: Information For Expression and Peer Review by Law Students, Articled Clerks, and Students-at-Law

Constructive Peer Review is Encouraged By and Among Judges, Lawyers, and Forensic Scientists and Technologists- Click an Add, Edit, or Update Link to Participate

This DUI Law page is for expression by students of law and forensic science in understanding and peer reviewing important DUI Law: concepts, words, issues, and ideas. This site is not intended to provide DUI legal advice to the public. Members of the public with DUI law questions should consult and retain a DUI lawyer or attorney for proper legal advice. Because this information comes from many sources who may not be DUI law lawyers or attorneys and because this site does NOT contain solicitor-to-client personalized advice it would be unsafe to rely upon this information. This database was developed by Stephen R. Biss, Barrister & Solicitor, who practices law in Mississauga, Ontario, Canada.

 

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For more information respecting this database or to report misuse contact: Allbiss Lawdata Ltd., 303-470 Hensall Circle, Mississauga, Ontario, Canada, L5A 3V4. The author and the participants make no representation or warranty  whatsoever as to the authenticity and reliability of the information contained herein. Advertisement. The participants do not practice in association. WARNING: All information contained herein is provided by students of the law for the purpose of discussion and peer review only and should not be construed as formal legal advice. The authors disclaim any and all liability resulting from reliance upon such information. You are strongly encouraged to seek professional legal advice before relying upon any of the information contained herein. Legal advice should be sought directly from a properly retained lawyer or attorney.

Intoxilyzer®  is a registered trademark of CMI, Inc. The Intoxilyzer® 5000C is an "approved instrument" in Canada.
Breathalyzer® is a registered trademark of Draeger Safety, Inc., Breathalyzer Division. The owner of the trademark is Robert F. Borkenstein and Draeger Safety, Inc. has leased the exclusive rights of use from him. The Breathalyzer® 900 and Breathalyzer® 900A are "approved instruments" in Canada.
Alcotest® is a registered trademark of Draeger Safety, Inc. The Alcotest® 7410 GLC is an "approved screening device" in Canada.
Datamaster®  is a registered trademark of National Patent Analytical Systems, Inc.  The BAC Datamaster® C  is an "approved instrument" in Canada.

 

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