You’ve just caused a three-car accident. Quick, what do you do?
How about chugging a mickey of booze? Then when the cops show up, lie about it and say you were smoking pot instead.
As baffling a strategy as that sounds, it worked for an Ontario man, who recently had his drunk driving conviction quashed by an appeals court judge.
On December 23, 2011, Danny Kahl was driving to jail to serve the last weekend of an intermittent sentence. A self-described alcoholic, Kahl would always chug a mickey of cinnamon schnapps in the parking lot of Toronto’s Mimico Correctional Centre before reporting in. That way, guards would only smell cinnamon instead of booze and because he’d only just drunk it, he wouldn’t be noticeably smashed.
This last weekend would turn out differently. Kahl cut off another driver and caused on accident on Hwy. 427 in Toronto. Thinking he’d just be taken straight to Mimico, he gulped down most of a mickey of Fireball Whiskey.
Police arrived at the accident scene and, spotting the red-eyed Khal, demanded a breathalyzer test. He claimed he wasn’t drunk, that he had just been smoking pot. Turns out that’s not good enough for those stickler cops, and when the results eventually came in, Kahl blew well over the legal limit.
When it came to trial, Kahl put up a last-drink, or “bolus,” defence. Bolus — a medical term for a large dose taken all at once — means the accused was not legally impaired at the time of the offence, only by the time they took a blood test.
Read: Learn about the law: drunk driving
The trial judge said it “begs credulity” that someone with Khal’s checkered history, including convictions for impaired driving, would guzzle schnapps before the cops came to an accident scene. Basically, an experienced drunk driver would know better, since he just wouldn’t have done that.
Kahl appealed the conviction in 2014, but Ontario’s Superior Court backed the original judge. The third time was a charm; last week, the Court of Appeal ruled in Kahl’s favour and ordered a new trial.
The critical factor centred on the amount Kahl drank and the timing of his breathalyzer test. At the first trial, a toxicologist offered two scenarios based on the amount of alcohol consumed, but the judge erred by only considering the one that damaged Khal’s case.
“Wholly ignoring … opinion evidence that was capable of supporting his claim, constituted a failure to consider evidence relevant to a material issue, and thus a misapprehension of the evidence,” the appeal court ruling reads.
While bolus defences have worked in the past, including the Supreme Court of Canada case R. v. St. Pierre, don’t trying keeping a bottle in your glove compartment as your get-out -of-jail-free card. Section 258 of the Criminal Code, as well as other existing case law, clarifies when bolus is an applicable defence and it’s difficult to prove.
It’s a long shot, so don’t take your chances.