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Sometimes a person accused of a per se over 80 offence tells their lawyer what they drank and when and the lawyer hires a toxicologist to calculate the person's estimated blood alcohol concentration at the time of driving. If the evidence of the driver is believed and the toxicologist's expert evidence is accepted and that evidence contradicts the breath instrument reading, in some juridictions there may be a defence. In Canada this is called a Carter defence or "evidence to the contrary".
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If the accused gives evidence that is believed, which contradicts the breath instrument, then the accused raises a reasonable doubt as to the accuracy of the blood alcohol concentration analysis provided by the breath instrument. See R. Carter (1985) 19 C.C.C. (3d) 174 ON CA. See also section 258(1)(c) of the Criminal Code of Canada.
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