Man attempts new defence driving while BlackBerrying

From Tuesday's Globe and Mail

When Joe Doe was arrested for drunk driving after a police officer spotted him weaving across Highway 401 near Toronto, he came up with a novel argument: the BlackBerry defence.

Mr. Doe said "there probably was a good chance" he was weaving across the freeway, but it wasn't because he was impaired, it was because he was sending messages on his BlackBerry. He used his knee to steady the steering wheel while he sent and received messages on the device, according to documents filed in court.

The case ended up before an Ontario judge and Mr. Doe pressed his point. He argued that on Oct. 29, 2004, he was on his way home to Ajax, Ont., from an afternoon golf game. He said he'd had one drink at the golf course and two drinks later in a bar. He was arrested around midnight after a police officer received a call about an erratic driver on Highway 401. The officer followed Mr. Doe until he drove off the freeway and pulled over on a side street.

Mr. Doe lost at trial in the Ontario Court when the judge ruled that using a BlackBerry while driving on the 401 constituted "sufficient evidence of the impairment of the faculty of judgment needed to safely operate a motor vehicle."

In addition to that, the judge ruled, Mr. Doe's blood-alcohol level was over the legal limit, he smelled of alcohol when he was arrested and he had a hard time staying awake en route to the police station.

Mr. Doe wouldn't give up. He appealed, arguing that "the judge concluded erroneously that because [Mr. Doe] stated that he drove with a raised knee on the steering wheel and was sending e-mails with his BlackBerry, that fact, 'standing alone,' showed impaired judgment."

To be convicted of impaired driving under the Criminal Code, he argued, the ability to drive must be impaired by alcohol or a drug, not a BlackBerry.

In a recent ruling on the appeal, Mr. Justice Bryan Shaughnessy of the Ontario Superior Court threw out Mr. Doe's argument. In his decision, Judge Shaughnessy said the trial judge correctly based his ruling on the overall evidence and not just on Mr. Doe's BlackBerry use.

"There was ample evidence to support an impaired conviction including observations of [Mr. Doe's] driving that included weaving within his lane and on one occasion outside his lane; turning right on a red light without stopping or signalling; a near miss in striking another vehicle as he made his right-hand turn and continuing to operate his vehicle for kilometre while the police cruiser followed with emergency lights and subsequently a siren activated," the judge said.

It is not clear whether Mr. Doe plans to take the case to the Ontario Court of Appeal. He declined comment when reached at his home last night.

"There's always a new defence, someone is always trying something," said Toronto lawyer Jonathan Rosenthal, who specializes in impaired-driving cases. "I've never heard of that one before."

When asked whether he'd heard about people using BlackBerrys while driving on the 401, he paused and replied, "Uh oh, you've never driven with me."


(Note - name removed and replaced with Joe Doe to protect Mr. Doe)