Her Majesty the Queen - v. -, 2016 SKPC 063

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 063 Date: May 2, 2016 Information: 90010622 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Christopher Curtis Sweeney Appearing: Derek Davidson For the Crown Nicholas P. Robinson For the Accused DECISION B. TOMKINS, J [ 1 ] Mr. Sweeney is charged with two offences alleged to have occurred in Regina, Saskatchewan on or about February 26, 2015, as follows: • While his ability to operate a motor vehicle was impaired by alcohol or a drug, have the care or control of a motor vehicle, contrary to section 255(1) and section 253(1) (

a) of the Criminal Code ; and • Having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, have the care or control of a motor vehicle, contrary to section 255(1) and section 253(1) (

b) of the Criminal Code . [ 2 ] Counsel agreed that the trial would proceed as a blended voir dire and trial. That is, the Crown's evidence was tendered on

the voir dire and the voir dire was completed, the defence calling no evidence. The case was then called on the trial proper at which point the evidence taken on the voir dire was applied by consent and the defence called evidence. The matter was then reserved for decision on the voir dire and on the trial itself. This is my decision on both. I. FACTS [ 3 ] There is not much of significance in dispute among the evidence of the witnesses in this matter. Where there are differences, I will deal with them in the course of and as necessary to my analysis and reasons.

With that proviso, these are the facts as I find them. [ 4 ] On February 26, 2016, Mr. Sweeney and a number of his co-workers were laid off from their jobs. They decided to go out for the evening before going their own ways. Anticipating that alcohol would be involved, they made a plan. They would start their evening at the Smitty's bar in a local mall and perhaps move on to a bar on Dewdney Avenue. One of the friends who did not drink would be their designated driver. At the end of the evening, they would all share a room at a low-cost hotel nearby. [ 5 ] Mr. Sweeney packed his belongings into his truck.

At about 6:30 p.m., he joined his co-workers at the Smitty's bar. While there, he consumed two schooners of beer; these, he said, are the equivalent of about two beers each. At about 9:00 p.m., Mr. Sweeney noticed that the power to his phone was dying and he decided to leave his friends in Smitty's and go to his truck to get it charged. While he was there, he thought, he would call his fiancé and scroll Facebook. [ 6 ] It was late February in Saskatchewan and the evening was very cold. Mr. Sweeney, seated in the driver's seat, started the truck to get and stay warm.

He knew it would take as long as an hour for the phone to charge so, he said, he reclined his seat and put a pillow under his head. He said he didn't plan to sleep when he went to the truck but he fell asleep while he waited for the phone to charge. [ 7 ] Mr. Sweeney said that at the time he went to the truck, he "had a buzz" but knew what he was doing. He does not think he was drunk but believed he was over the limit and knew he couldn't drive.

He said he had no intention to move the vehicle at all. [ 8 ] At 10:56 that night, Constables Wooley and Neufeld were dispatched to the Smitty's parking lot on a complaint, according to Cst. Wooley, that a man was passed out in a running vehicle in the parking lot or, according to Cst. Neufeld, that there was "an impaired driver slumped in his vehicle". They drove to the scene, drove past the vehicle and observed a man, apparently sleeping, in the driver's seat and slumped to the right. The vehicle was running with the lights on.

They stopped the police vehicle, ran the plates to learn who was the registered owner of the parked vehicle and then turned on their dash cam and exited their vehicle. [ 9 ] Cst. Wooley went to the driver's door and Cst. Neufeld to the passenger door. Cst. Neufeld's role was to see if there was a passenger in the vehicle and to ensure there were no weapons or safety issues. Cst. Wooley dealt with the occupant. [ 10 ] Virtually simultaneously and without prior warning to the occupant, they opened the doors. Cst.

Wooley identified himself as a police officer as he reached across and removed the keys from the ignition. As he did this, the man turned and grunted - an unintelligible guttural noise - and Cst. Wooley said he was "overwhelmed" by the smell of alcohol. The man also said a few words or phrases that Cst. Wooley did not understand. He told the man he was under arrest for impaired care or control and asked him to exit the vehicle. He did. [ 11 ] While Cst.

Wooley estimated the time from when he exited the police vehicle to the time the man exited his at about two minutes, the dash cam video timer shows it was actually 29 seconds. The timer on the dash cam video shows that approximately 15 seconds elapsed from the time the officers opened the truck doors until the man was standing outside. [ 12 ] The man, of course and it is not disputed, was Mr. Sweeney. [ 13 ] Mr. Sweeney was taken to the police car. Once there, Cst. Wooley confirmed that he was under arrest for care or control while impaired and made a breathalyzer demand. He also provided Mr.

Sweeney his rights and warnings. Mr. Sweeney responded appropriately and intelligibly to all related questions. [ 14 ] After waiting for another car to arrive to deal with Mr. Sweeney's truck, they travelled to the police station. There, Mr. Sweeney was placed under observation at 11:34 p.m. and at 11:56 p.m., he gave his first sample. He was again observed until 17 minutes after midnight when he gave his second sample. Both samples measured over 80 milligrams of alcohol in 100 millilitres of blood. [ 15 ] At that point, Mr. Sweeney was arrested as well for having care or control of a vehicle while over .08.

He was again provided his rights and warning. II. VOIR DIRE DECISION [ 16 ] On these facts on the voir dire , the defence raised Charter issues as follows: 1. That the entry to Mr. Sweeney's vehicle without warning and without grounds constituted an unlawful entry and detention, contrary to

section 9 of the Charter ; 2. That there were not reasonable grounds for Mr. Sweeney's arrest for having care or control while impaired and he was therefore arbitrarily detained contrary to

section 9 of the Charter ; and 3. That there were not reasonable grounds for the breathalyzer demand and Mr. Sweeney was therefore subjected to an unlawful search contrary to

section 8 of the Charter . [ 17 ] He finally argued that as a result of the accumulated Charter breaches, the Certificate of Qualified Technician should be

excluded after Grant analysis pursuant to section 24(2) of the Charter. A. ANALYSIS OF VOIR DIRE ISSUES 1. Unlawful Entry and Detention [18] Mr. Sweeney argued that the police actions in opening the doors and entering his vehicle without warning or reasonable causeconstituted an illegal entry and, consequently, an unlawful search and detention. In this regard, he may be correct but in my view, theentry to the vehicle is so inextricably wound into the subsequent arrest that the two must be considered together. As was noted above,only 15 seconds elapsed from the time the vehicle doors were opened until Mr.

Sweeney was standing outside the driver's door. Hisarrest occurred before he exited and so less than 15 seconds after the police entry. [19] If I am incorrect in taking this approach and assuming Mr. Sweeney is correct in submitting that the entry was unlawful andcontrary to the Charter, I would have concluded that: • the breach was serious, considering a person's expectation of privacy in his vehicle and the officers' lack of reasons for not firstattempting communication with Mr.

Sweeney; • the impact of the breach was minor in that events would not likely have occurred differently even had the police identifiedthemselves and attempted to rouse Mr. Sweeney before opening the doors to the vehicle; and • admission of the Certificate would support society's interest in adjudication on the merits. Considering these together, I would not have excluded the Certificate of Qualified Technician as a consequence of this Charter breach. 2. Grounds for Arrest for Care or Control while Impaired [20] Mr.

Sweeney submits that his arrest was made without reasonable grounds and so constituted an arbitrary detention contraryto

section 9 of the Charter. [21]

Section 495 of the Criminal Code authorizes a peace officer to arrest without warrant any person who he or she believes onreasonable grounds has committed an indictable offence. [22] The Saskatchewan Court of Appeal, in R v Shinkewski,[1] gave a

summary of principles relating to reasonable grounds forarrest. Mr. Justice Caldwell wrote as follows: The legal standard of "reasonable grounds to believe" has been the subject of considerable judicial

interpretation. I do not propose toreview it all; however, I make the following observations from the jurisprudence: (

a) an arresting officer must subjectively hold reasonable grounds to arrest and those grounds must be justifiable from an objective pointof view - in other words, a reasonable person placed in the position of the arresting officer must be able to conclude there were indeedreasonable grounds for the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241; (

b) an arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities (Mugesera v.Canada (Minister of Citizenship & Immigration), 2005 SCC 40 , [2005] 2 S.C.R. 100) or a prima facie case for conviction (R. v.Storrey) before making the arrest; but an arresting officer must act on something more than a "reasonable suspicion" or a hunch (R. v.Morelli, 2010 SCC 8 , [2010] 1 S.C.R. 253, at para 91; R. v. Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59; R. v. Simpson(1993), (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.)); (

c) an arresting officer must consider all incriminating and exonerating information which the circumstances reasonably permit, but maydisregard information which the officer has reason to believe may be unreliable: R. v. Storrey; (

d) a reviewing court must view the evidence available to an arresting officer cumulatively, not in a piecemeal fashion: R. v. Savage,2011 SKCA 65 , 371 Sask. R. 283; R. v. Nguyen, 2010 ABCA 146 , 477 A.R. 395; and R. v. Storrey; and (e) "...the standard must be interpreted contextually, having regard to the circumstances in their entirety, including the timing involved,the events leading up to the arrest both immediate and over time, and the dynamics at play in the arrest": R. v. Nguyen, at para. 18; and,context includes the experience and training of the arresting officer: R. v. Nolet, at para 48; R.v.

Whyte, 2011 ONCA 24 , 266C.C.C. (3d) 5, at para 31; and R. v. Luong, 2010 BCCA 158 , 286 B.C.A.C. 53, at para. 19.

[ 23 ] The Court of Appeal discussed the distinction between a reasonable suspicion and reasonable and probable grounds in R v Savage . [2] In that decision, Madam Justice Smith wrote: Although neither requires proof beyond a reasonable doubt, there is a significant distinction between the test of objectively reasonable and probable grounds to believe that a crime has been committed and the test of objectively reasonable suspicion that a crime is being or has been committed.

The former requires that the factors relied upon have enough probative value to establish the probability that the suspect is implicated in criminal activity. This is the threshold required for a lawful arrest and a physical search incident to arrest. The standard for reasonable suspicion, the threshold for investigative detention and for the deployment of a sniffer dog, is less stringent. This requires that the police have more than a mere hunch, based on intuition gained by experience. They must be able to point to objective facts that support the suspicion.

However, the lower standard does not require that the officers be able to point to factors sufficient to establish the probability of the crime. Reasonable suspicion is a lower standard and can be established by less evidence, with less probative value, than reasonable and probable cause. ( Italics mine. ) [ 24 ] In assessing Cst. Wooley's grounds, I have given little weight to the civilian report of a man "passed out" or an impaired man slumped (depending which of the officers' evidence is most accurate) in a vehicle. I believe that Cst. Wooley, acting reasonably, would also give it little weight.

Neither he nor I had any information about the civilian's observation and whether that person viewed Mr. Sweeney in his vehicle in a manner that could indicate that he was impaired or whether he was passed out from alcohol consumption, sleeping or merely slumped in his seat. While the officers can rely on this information in forming grounds to arrest, without more it could only reasonably be taken as a report that a man was slumped and not apparently awake in a running vehicle.

Further, there was nothing in the dispatch report that the officers did not personally observe when they arrived at the scene. [ 25 ] I am satisfied that the officers' belief when they approached the vehicle was that the occupant was impaired and that this was their only concern as he approached. I do not believe that either was concerned for the health of the occupant for two reasons: first, neither testified that this was a concern and secondly, once they entered the vehicle, neither made any inquiries or observations relating to Mr. Sweeney's health. While Cst.

Neufeld testified he opened the passenger door to check for weapons and assess safety concerns, he did not testify to conducting any search of the vehicle - whether for weapons or anything else - or as to observations regarding safety. I am not convinced by his evidence in this respect. [ 26 ] Instead, I am satisfied beyond a reasonable doubt that the officers approached the vehicle anticipating an impaired occupant and upon smelling alcohol and hearing guttural sounds, concluded immediately and without more that the occupant was impaired.

This is supported by the officers' actions in opening the doors and arresting Mr. Sweeney within seconds of entry. There simply was not time to assess his circumstances or draw any conclusions. [ 27 ] The assessment of reasonable grounds imports subjective and objective considerations: the officer making the arrest must subjectively believe that an offence has been or is being committed and his subjective belief must be supported on an objective perspective of the evidence. In this case, Cst.

Wooley had a hunch that the occupant of the vehicle might be impaired and maybe even a hunch that his ability to operate a vehicle was impaired. But the mere fact that the officer smelled alcohol and heard Mr. Sweeney make unintelligible sounds upon waking does not, in my view, raise that suspicion to reasonable grounds. [ 28 ] As was noted in Shinkewski and many other cases, in forming reasonable grounds, the officer must take into account all of the circumstances, those which are incriminating and those that are not. In so doing, he must consider innocent explanations for circumstances he observes. Cst.

Wooley did not do this. [ 29 ] While he had subjective suspicion, I am not satisfied that Cst. Wooley's beliefs meet the elevated test for reasonable grounds to arrest Mr. Sweeney for care or control while impaired and, in that sense, he did not have subjective reasonable grounds for the arrest. Nor am I satisfied that there were objective grounds for that conclusion. That being the case, the arrest was unlawful and Mr. Sweeney's detention was arbitrary contrary to

section 9 of the Charter . 3. Grounds for Breathalyzer Demand [ 30 ] After Mr. Sweeney was removed from his vehicle, he was taken to the police vehicle. Once there, Cst. Wooley confirmed that he was under arrest for care or control of a vehicle while impaired. He made a breathalyzer demand, advised Mr. Sweeney of his right to counsel and provided the police warning. Neither officer testified to the times that these events occurred but it would appear that it was very shortly after they entered the police vehicle and that they entered the police vehicle directly after Mr.

Sweeney was removed from his truck. [ 31 ] There was some conversation between Mr. Sweeney and the officer during this brief time. Mr. Sweeney's speech was easily intelligible and he responded appropriately, if erroneously, when asked for his driver's licence; he said it was in his pocket but it was in fact in the vehicle. [ 32 ] Cst. Wooley's grounds for the breathalyzer demand included, of course, his observations when he entered Mr. Sweeney's vehicle. By the time he made the demand, he had acquired additional information. This included the fact that Mr.

Sweeney spoke intelligibly and responded appropriately in conversation. Cst. Wooley had also by then had opportunity to observe that Mr. Sweeney did not have any difficulty walking and that he did not make further unintelligible sounds. These, in my view, do not add to the officer's grounds and would appear to contradict his earlier conclusion. [ 33 ] Just as Cst. Wooley did not have grounds to arrest Mr. Sweeney, the information on which he based the demand is not sufficient to support a breathalyzer demand. Pursuant to section 254(3), the demand is authorized if Cst.

Wooley had reasonable grounds to believe that Mr. Sweeney committed an offence under

section 253 within the preceding three hours. As with grounds for arrest, the test imports both subjective and objective components. Similarly, it is not an onerous threshold; the grounds need not establish a prima facie case. Finally, grounds must be considered in their totality, not examined individually in isolation from their combined impact.

[ 34 ] It would not be inappropriate that, in the circumstances, Cst. Wooley believed he was conducting an impaired driving investigation, particularly after he smelled alcohol upon entering the vehicle. But having acted on his suspicions, he was obligated to conduct that investigation. [ 35 ] There was nothing in the circumstances that would have prevented him from doing so. Mr. Sweeney was outside the vehicle so there was no danger that a driving offence, if there was one, would be perpetuated. Time - the two hour limit before testing must be done - was not pressing. Mr. Sweeney was co-operative. Had Cst.

Wooley observed gross signs of impairment, the short time from observation to demand might not have been a concern but, in fact, his observations between the arrest for impaired driving and the demand under section 254(3) were, if anything, suggestive against impairment; at minimum, they invited further assessment. Cst. Wooley did not undertake this. [ 36 ] For these reasons, I am not satisfied that Cst. Wooley had reasonable grounds to make a demand for breathalyzer samples. B. GRANT ANALYSIS – CHARTER SECTION 24(2) [ 37 ] I have found that Mr.

Sweeney's Charter rights were breached in two respects but, as the evidence in support of each of those breaches is fundamentally identical and as they are the consequence of what is essentially one transaction, I will consider them together for purposes of this analysis. [ 38 ] In accordance with R v Grant , [3] evidence obtained in violation of the Charter will be received in evidence notwithstanding the breach if its admission would not bring the administration of justice into disrepute.

In the latter regard, the court said: [4] The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective.

It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter would conclude that the admission of the evidence would bring the administration of justice into disrepute. Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. Finally, s. 24(2)’s focus is societal.

Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system. [ 39 ] With these comments in mind, I turn to the three criteria which are: • the seriousness of the Charter -infringing state conduct which led to the discovery of the evidence; • the impact of the breaches on the Charter -protected interests of Mr.

Sweeney; and • society's interest in an adjudication of the case on its merits. [ 40 ] As to the seriousness of the breach, I am mindful that time and circumstances would have allowed the officers to further their investigation. In particular, they might have conducted physical sobriety tests, required Mr. Sweeney to provide a sample to an Approved Screening Device or simply taken time to interact with him and better assess his state of sobriety.

Instead, the officer making the arrest and demand acted on basic and equivocal observations. [ 41 ] In this regard, the words of the Court of Appeal in R v Sundquist [5] are relevant. In discussing reasonable and probable grounds, the Court wrote: This standard constitutes a safeguard against arbitrary police action, one drawn from the common law. It imposes responsibility on police officers to act with restraint and after careful assessment.

Indeed, it contemplates a judgment being made about the condition of the person—a judgment based on objective criteria, borne of a degree of likelihood that transcends reasonable suspicion, and open to later judicial assessment. [ 42 ] The officer in this case did not “act with restraint and after careful assessment” and, in that manner, failed to safeguard Mr. Sweeney from arbitrary police conduct. This conduct essentially disregarded Mr. Sweeney’s right not to be arbitrarily detained. This aggravates the seriousness of the breach. [ 43 ] The breach ultimately resulted in the taking of a breath sample.

This is a relatively minor search. However, it also led to Mr. Sweeney being handcuffed, searched and detained in the police vehicle and at the police station. This detention is authorized when based on objectively sound grounds; without those grounds, the detention was arbitrary. I was not provided evidence of the time Mr.

Sweeney was released from custody but there is evidence from which I conclude that that he was detained for longer than one hour and 15 minutes, being the time from when the police entered his vehicle until the second test was taken at 12:17 a.m. [ 44 ] Society’s interest in the adjudication of impaired driving cases on their merits is important, given the prevalence of and danger presented by impaired drivers.

However, as was quoted at paragraph [38] above, society’s interest in adjudication on the merits must also take into consideration society’s interest in ensuring that Charter rights have real meaning and that they are not abridged by reason of convenience. In this case, the officer’s precipitous actions in arresting Mr.

Sweeney and making a breathalyzer demand without adequate grounds and with alternatives conveniently available, illustrate the reason society is interested in the protection of Charter rights, even where impaired driving is involved. [ 45 ] Balancing my conclusions on the three factors, I am satisfied that the admission of evidence consequently obtained would bring the administration of justice into disrepute. The Certificate of Qualified Technician will be excluded. III. TRIAL DECISION A. CARE OR CONTROL [ 46 ] Section 258(1)(

a) creates a presumption that, when a person is found occupying the seat ordinarily occupied by a person operating a motor vehicle, he will be deemed to have had the care or control of the vehicle unless he establishes that he did not occupy that seat for the purpose of setting the vehicle in motion. [ 47 ] In this regard, I am satisfied that Mr. Sweeney occupied the driver’s seat of his truck. I do not, however, accept Mr. Sweeney’s evidence that his seat was fully reclined while he slept. Both officers testified that he was slumped but otherwise upright in the driver’s seat.

Further, the civilian who called in the concern said that the person was “passed out” or “slumped” in the vehicle. These observations would suggest that Mr. Sweeney was in a position where he could be observed and that, therefore, he was not reclined. Thus, the presumption is raised. [ 48 ] Mr. Sweeney argued that he had a plan that did not involve driving his vehicle and that he has therefore rebutted the presumption. Briefly, he said he and his friends agreed that they would go to the bar near where Mr. Sweeney was arrested by the police.

They thought they might spend the evening there or they might later move to another bar on Dewdney Avenue. If they moved, a designated driver would transport them there. At the end of the evening, they would return to the mall where their evening started and share a room at a low-cost motel located nearby. I accept Mr. Sweeney’s evidence in this regard and I accept that this is a sound plan. [ 49 ] However, I am satisfied that Mr. Sweeney abandoned the plan when he went to his vehicle and stayed for two hours; this was not part of the plan. On his own evidence, Mr.

Sweeney intended to spend only an hour in the vehicle to charge his phone. [ 50 ] Further, I note that had the police not intervened, he would have been away from his friends for longer as he was soundly asleep when the police arrived. Of course, we cannot know when he would have wakened and what he might have decided to do at that point. [ 51 ] There is no evidence before me as to whether Mr. Sweeney’s friends stayed at the first bar or left him to travel to the second.

There is no evidence that they were waiting this uncertain length of time for him to return or that they did or might have searched for him in the parking lot. There is no evidence that any of his friends knew where his vehicle was parked and, therefore, where Mr. Sweeney was. [ 52 ] Had Mr. Sweeney gone to his vehicle for a brief time, the plan would likely have remained in place. But having taken a “detour” from the plan for an undefined time and without evidence as to the actions and intentions of his friends, I am satisfied that the plan was abandoned either in fact or constructively. [ 53 ] Mr.

Sweeney carries the burden to rebut the presumption and he has not done so. [ 54 ] If I am incorrect in this regard, I would nonetheless have concluded that Mr. Sweeney was in de facto care or control of his vehicle. While I do not think the circumstances were such that he might have inadvertently put the vehicle in motion, Mr. Sweeney might have had a longer sleep, woken and decided to travel to Alberta where he would be going in the morning in any event. He might have misjudged his ability to drive and driven while impaired. [ 55 ] In both respects, therefore, I am satisfied that Mr.

Sweeney had care or control of his vehicle. B. CARE OR CONTROL WHILE IMPAIRED [ 56 ] The evidence does not satisfy me beyond a reasonable doubt that Mr. Sweeney’s ability to operate a motor vehicle was impaired by alcohol. While the evidence is likely adequate to establish that Mr. Sweeney had alcohol in his body, he was not observed to have difficulty walking or standing or to have compromised small motor skills.

While he made unintelligible sounds during a few seconds on waking, he was thereafter able to comprehend and converse coherently. [ 57 ] I am mindful that impairment will be established if a person’s ability is impaired even slightly. [6] In this case, however, the evidence does not establish impaired ability to operate a motor vehicle to any degree. [ 58 ] For this reason, Mr. Sweeney will be acquitted on count 1 for having care or control of a vehicle while his ability to do so was impaired by alcohol. C.

CARE OR CONTROL WHILE OVER .O8 [ 59 ] Because the Certificate of Qualified Technician has been excluded, there is no evidence of Mr. Sweeney’s blood alcohol level

at the time of the events recounted. That being the case, I do not have to consider his argument that he was not properly observed prior to being tested. Were I required to do so, I would have concluded that the observation was not ideal but was adequate. [ 60 ] There being no evidence of Mr. Sweeney’s blood alcohol level, he will be acquitted on count 2 of having care or control of a vehicle while his blood alcohol level exceeded .08. D. CONCLUSION [ 61 ] As to both counts, I am mindful of Mr. Sweeney’s evidence that, when he went to his vehicle, he believed he shouldn’t drive and that he was “over the limit”.

The Crown argued that this is effectively an admission of impairment. I cannot accept this argument. Different individuals have different guidelines about when, after consuming alcohol, they can drive and when they shouldn’t. Mr. Sweeney’s admission that his condition was beyond his personal guideline is meaningless without knowing what that guideline is.

Further, a person’s judgment as to his state of impairment or his being over or under .08 is unreliable; witness the number of people convicted of driving while over .08 who, even with readings at double the limit, did not think that they were over. [ 62 ] For all of the reasons given above, Mr. Sweeney will be acquitted of both charges. _________________________________ B. Tomkins, J