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Two hour limit
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What is the two hour limit in section 258(1)(c)?
What happens if the breath test is more than two hours after my driving?
If driving occurs at 19:00 but breath instrument or blood tests occur at 23:00 is it fair and scientific to assume that the blood alcohol concentration at 23:00 is the same as that at 19:00? Probably not. Absent an opinion from an expert who can testify an opinion as to the absorption, distribution, and elimination of alcohol in the blood, and the usual rates thereof, it would be impossible for the prosecutor to prove blood alcohol concentration (BAC) at time of driving. To solve this problem various jurisdictions create presumptions by statutes that BAC at time of driving equals BAC at time of breath or blood tests. That presumption of identity is only fair if the breath or blood tests are reasonably proximate in time to the driving. Some jurisdictions have arbitrarily established a two hour limit for the fair operation of this presumption.
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