Greater Toronto Area criminal defence lawyers who specialize in defending clients charged with DUI could probably tell you some funny and odd stories about the cases they’ve taken. However, you will not likely hear them due to attorney-client privilege. They might, though, be willing to share anecdotal versions of other DUI cases they’ve heard about and are usually able to answer most DUI-related questions.
With that in mind, then, the experienced criminal defence DUI lawyers at Mass Tsang were recently challenged by a DUI-related question. That is, “can you get a DUI for driving after drinking too much coffee?”
An interesting question that gave us pause. From our reading and understanding of DUI provisions in Canada’s Criminal Code, Ontario police could technically charge someone with a drug-related DUI based on the coffee’s caffeine impairing their ability to drive safely. However, we are not aware of any such cases ever being heard in a Canadian court and could not find such evidence with a quick Internet search.
Coffee-based DUI arrests appear to be equally rare in the U.S. but leave it to the state of California to buck the trend with the only known coffee DUI in North America. Let’s take a quick look at that case before further examining its possibility in Canada.
Did District Attorney Second-Guess DUI Charges?
In August 2015, a California man named Joseph Schwab was pulled over by an alcohol control officer for erratic and reckless driving. Based on Mr. Schwab’s “demeanour” and “performance on several field sobriety tests,” the officer placed Mr. Schwab under arrest for DUI. Subsequent alcohol screening and blood sample testing proved entirely negative for alcohol and recreational drugs, but the district attorney maintained the charges and ordered additional testing. This testing determined that caffeine was the only substance in his bloodstream at about the time of his arrest.
Under California DUI laws, a drug is classified as any non-alcoholic substance that might “impair, to an appreciable degree,” a driver’s capability to operate a motor vehicle safely. The district attorney continued to maintain the charges after the subsequent testing despite motions from Mr. Schwab’s lawyer to dismiss the charges. This perhaps suggests that the DA was considering whether to pursue the DUI based on caffeine. However, after national media picked up the story, the DA claimed that the charges were being mischaracterized and that his office was not planning to seek a conviction based on the caffeine. Rather, the DA said the evidence suggested that drugs definitely impaired Mr. Schwab but that their presence was somehow not picked up by the blood testing. The DA eventually dropped the DUI charges, but Mr. Schwab still faced a charge of reckless driving.
Could This Happen in Canada?
So, could such a DUI arrest due to coffee scenario happen in Canada? Based on the language in the Criminal Code, the criminal defence lawyers of Mass Tsang believe it’s possible but highly unlikely.
The kicker is that while caffeine is technically a stimulant-class drug, it is not regulated as a drug by Health Canada or other regulatory bodies. This lack of government oversight would likely make it easy for a defence lawyer to negate any efforts by the Crown to secure a DUI conviction based on caffeine impairment.
For the sake of argument, though, let’s say Ontario police did decide to charge someone with a DUI because they were so jacked up on coffee that they could not steer straight. How might this play out?
Such a scenario would kick off when the suspect successfully passes the roadside approved-screening device that detects possible alcohol concentrations. The police officer will follow up with “Standard Field Sobriety Testing” (SFST). The SFST consists of a series of tests designed to gauge coordination and focus and identify other signs of potential impairment by drugs.
We’ll assume that our hypothetical java-impaired offender is so jacked up that they fail the SFST, at which point the officer has grounds to arrest them for driving while impaired by drug. The officer would take the offender to the police station, where they would be evaluated by a police drug recognition evaluator (DRE) trained and certified by the International Drug Evaluation and Classification Program (DECP). The DRE would conduct a series of steps designed to assess the suspect’s impairment by drugs. Some of these steps include:
- Testing of vital signs such as pulse, blood pressure, and body temperature.
- Preliminary questioning to determine whether the suspect may have any medical conditions that could account for the apparent impairment.
- Conducting three eye tests—Horizontal Gaze Nystagmus, Vertical Gaze
- Using a pupilometer, gauge the suspect’s pupil size in three different lighting conditions.
- Conducting the Rhomberg Balance, Walk and Turn, One-Leg Stand, and Finger-to-Nose psychophysical tests to assess coordination and the suspect’s ability to operate a motor vehicle safely.
If the DRE officer believes the suspect is impaired, the police can demand a sample of oral fluid, urine, or blood, which will be sent to a lab for analysis. If the suspect refuses to comply with the demand, they will be charged with a failure to comply with testing demand, which carries the same penalties as a DUI.
In this hypothetical case, things get interesting when the suspect complies, and the lab returns results that point solely to caffeine as the only “drug” in the suspect’s system. Given the subjective nature of any evidence that the arresting officer and DRE can provide, most drug impairment DUIs hinge upon the fluid sampling to secure a conviction. But what if the sampling only identifies a potentially impairing substance that may not be considered a drug from a regulatory perspective?
At this juncture, we assume that most Crown prosecutors would cut their losses and withdraw the charges. Perhaps a brave prosecutor will someday decide that subjective evidence combined with a massive amount of caffeine in the suspect’s system warrants a precedent-setting DUI case based on coffee impairment. If so, we sure hope we get the call to mount a defence.
Rely on the GTA’s Mass Tsang for Expert DUI Defence
If you or a loved one is arrested for DUI based on any type of impairment, we trust that you’ll turn to the skilled lawyers at Mass Tsang. Our lawyers have successfully defended 1,000s of DUI defendants in the Greater Toronto Area by helping those charged with DUI win their case or otherwise secure a favourable outcome. Contact the experienced criminal defence lawyers at Mass Tsang today for a free consultation.