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DUI, DWI & Criminal Legislation in Ontario
Criminal Code of Canada , section: 258 (1) (c)
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DUI Procedure/Evidence, Presumption of BAC
(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if
(ii) 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,
(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,
evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses;
Effective July 2, 2008 the latter paragraph is amended to read as follows:
evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;
Comments : Presumption that BAC at time of test is same as BAC at time of offence. Probably the most litigated section in the Criminal Code of Canada. Issues include: "as soon as practicable", "not later than two hours", "interval of at least fifteen minutes", "received directly", "approved instrument", "qualified technician", "evidence to the contrary".
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20080723121958
 | "Approved Instrument" |
| "As Soon As Practicable" |
| "Evidence to the Contrary" |
| At Least Fifteen Minutes Apart |
| Two Hour Limit |
| 401 |