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A New Defence to Impaired Driving?

One spring day in June, several citizens followed an erratically driven motor vehicle which eventually stopped at the dock area overlooking gorgeous Georgian Bay, in Parry Sound.  They called the cops.

The police were on the scene in no time and found Mark Jensen asleep, or passed out, behind the wheel of his car.  The police officer detected a strong odour of alcohol and it was clear to the police officer that Mr. Jensen was drunk.

Two breathalyser tests confirmed he was indeed impaired, recording his blood alcohol content at 290 and 280 mg. He told the breathalyser technician that he had been drinking and had consumed half of a 40 ounce bottle of rye.  For those who are unfamiliar with breathalysers, that is a lot of booze in one person's system.

At his trial, Jensen actually admitted that he was intoxicated on that occasion, but managed to come up with a novel defence in any case.

Mr. Jensen told the court that he was so despondent and depressed following his brother's death some few weeks before, that he opted for heavy drinking to assist him in his sorrow.  He further claimed he was in a confused state of mind.

To illustrate his confusion, Mr. Jensen told the court that approximately one week before he was found passed out behind wheel of his car, he had sat at a stop light and eventually was awakened by another driver since he had missed two green lights.  On that occasion, he said he had not been drinking.

At the trial Mr. Jensen testified that he had no recollection of the day he'd been found behind the wheel of his car intoxicated other than that he had spoken to his ex-wife on several occasions.  He claimed he had no recollection of when he purchased and consumed the alcohol and no recollection of telling the breathalyser operator that he'd been drinking rye and had consumed half of a 40 ouncer.

He also told the court, and this was an important piece of evidence, that he had no recollection of speaking to the various attendants at the hospital to whom he admitted that he had been drinking on the side of the road.

Mr. Jensen was relying on the idea that in order to convict him of impaired driving, it was necessary to show that he had "the intention" of drinking the alcoholic beverage.  Jensen's argument was that because he was in a confused state of mind and had no memory of the events leading up to his discovery, sitting behind the wheel of his motor vehicle, drunk, he could not have formed the necessary "intent" to drink.

The judge hearing the appeal of this case said that it is true that "intent" is a necessary element of the offence.  He gave some examples of when a person might not have "intent" but had become intoxicated or impaired from drugs or alcohol, such as:

  • A situation where, unbeknownst to the accused, a psychotropic drug is slipped into the accused's drink
  • An inadvertent exposure to hazardous chemicals at a worksite
  • The unexpected effect of dental anaesthetic or
  • The unexpected effect of mixing a prescription drug with alcohol.

In none of those cases could a person form"intent" since they were unaware of the event or the unexpected result of the event that preceded their becoming impaired.

Does Mr. Jensen's argument fit into one of these examples?  Jensen argued that he could not have formed an "intention" to drink because of his confused state of mind.  Jensen argued that he had no memory of the event that led to his arrest, or other events such as sitting through two green lights in his car.

Because of his confusion, and lack of memory, Jensen argued he could not have formed the "intention" to drink half of a 40 ouncer of rye.

Does his argument hold water (with or without rye)?

Here's what the appeal judge said:

"The only evidence before the trial judge was that the respondent (Jensen) could not remember consuming the alcohol. There is no evidence to indicate that he was not aware that he was consuming alcohol. Quite to the contrary, as indicated earlier, he did admit to the breathalyser officer and to the attending physician that he was consuming alcohol and where he had consumed it. The respondent led no evidence to show that he did not consume alcohol voluntarily. This situation is unlike the cases cited earlier whereby there was an unknown event which precipitated and preceded the impairment."

In the end, Jensen was convicted.

Lessons to be learned:

1) Very simply, if you drink don't drive!

2) Alcohol and drugs are no way to handle depression, sadness, or any other emotional problem. Alcohol in particular is not effective since it is a depressant (as opposed to a stimulant) drug itself.  Alcohol tends to increase depression.

At The Ross Firm, we have lawyers whose practice focus is Criminal Law, including matters dealing with Over 80 mg. charges and impaired operation of a motor vehicle.

Give us a call.

Talk to us.

We can help.

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