The “Carter defence” allowed an accused person to rebut the readings an Intoxilyzer by testifying about how many drinks they consumed. This was also known as the “two beer” defence.  The 2009 changes to the Criminal Code effectively banned an accused’s self-reported drinking history from challenging the breath readings.

The Ontario Superior Court recently confirmed that the “Carter defence” is dead in R. v. Agrawal, [2014] O.J. No. 4877.  The judge decided that:

 13     The second issue at trial is the one that Mr. Agrawal pursues in this court: whether external evidence was capable or raising a reasonable doubt as to whether the approved breath device was malfunctioning, operated improperly, or that the analysis was performed improperly. That external evidence was the evidence of the witnesses that Mr. Aggrawal was not a habitual drinker or alcoholic, but that he was also not falling down drunk despite the high BAC readings.

 14     The trial judge rejected this defence on the basis that it was not credible or reliable. She found that the evidence was not sufficient to establish Mr. Agrawal’s drinking habits. She also found that this defence amounted to an indirect Carter Defence.

 33     It follows, therefore, that the answer to the question of whether a trial judge may accept evidence of a person’s drinking habits must be “no”. “Drinking habits” are just another way to describe an accused person’s elimination and absorption rates. I agree with the trial judge that the Appellant’s attempt to raise a reasonable doubt by calling evidence of his drinking habits amounted to an indirect attempt to raise a Carter Defence. The amendments to the Criminal Code were aimed at de-fences like this one. The trial judge was right to reject the defence in this case.

On the other hand, the Judge confirmed health issues may be a potential source of error that are still available to an accused after the elimination of the Carter Defence.

Ottawa Criminal Lawyer

Charged with impaired driving, over 80 or DUI in Ottawa? Contact Ottawa criminal lawyer Brett McGarry to discuss the best defence for your case at (613) 884-8576.