Ontario Judge Rejects Impaired Driver's Blackberry Defence

The Globe and Mail reports:

When Curtis Fee 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. Fee 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.

...Mr. Fee 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. Fee'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. Fee wouldn't give up. He appealed, arguing that "the judge concluded erroneously that because [Mr. Fee] 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. Fee's argument. In his decision, Judge Shaughnessy said the trial judge correctly based his ruling on the overall evidence and not just on Mr. Fee's BlackBerry use.

- Annie Noa Kenet, Toronto

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