A brand of gin has been recalled by liquor authorities after some bottles were found to contain nearly twice as much alcohol as advertised.
Bottles of the popular Bombay Sapphire London Dry Gin were discovered by the Liquor Control Board of Ontario’s quality assurance team to have an alcohol content of 77 percent rather than 40 percent as stated on the label.
Owner Bacardi explained as many as 1,000 cases of the drink bound for the Canadian market were impacted by a factory error resulting in some products not being properly diluted. Ontario's liquor board previously recalled Georgian Bay vodka in March because several hundred bottles had not been properly diluted. All affected bottles have been pulled off store shelves across the country, but some may have already been purchased.
I imagine a few people woke up with surprisingly sore heads the morning after imbibing a few stronger-than-usual G&Ts. Hopefully that was the extent of any harm done but what if someone drove after drinking from one of these tainted bottles?
Hypothetically speaking, say someone had a drink from one of these bottles and thought the amount of alcohol it contained, according to the label on the bottle, was not enough to render them unfit to drive. They felt fine and decided to drive home only for a police officer to pull them over. The imaginary driver then blows a “Fail” on a roadside breath test.
Would the driver still be guilty of impaired driving?
In alcohol-impairment cases a defence that rarely arises is involuntary intoxication. It's not often that people unwittingly drink alcohol to the point of impairment, although it has been known to happen.
The defence of involuntary intoxication rarely works because it’s hard to prove you became unwittingly impaired.
In this case, a BC driver had two teeth removed during a trip to the dentist. He was injected with the anesthetic sodium penothal and felt fine upon leaving the surgery. He decided to drive and got into an accident.
During his impaired-driving trial, the defendant said he didn’t know he had been affected by the anesthetic but his argument was rejected by a judge on the basis of several warnings he had been given not to drive before the surgery, including one on a form he had signed.
Another way this defence falls down is if you feel the effects of alcohol but because you’re sure in your own mind that you didn’t have that much to drink you decide to drive anyway.
In this case a truck driver attempted to use involuntary intoxication as a defence to appeal against a drunk driving conviction. He claimed various prescription meds he was on caused him to be more drunk than usual after a few drinks.
The appeal was ultimately dismissed because before operating the vehicle he had told his drinking buddy he didn’t feel well and asked him if he was okay to drive instead. In other words, because he knew he felt more affected by the drinks than he should have been he was aware of his impaired condition before driving and was therefore liable.
So if someone were to be charged with impaired-driving after drinking from one of the tainted Bombay Sapphire bottles, they would have to feel sober to have unwittingly been intoxicated in the eyes of the law.
Interestingly, if someone were to face a criminal charge of impaired driving after drinking from one of the tainted gin bottles, they would have a greater chance of protection under the involuntary intoxication defence. This is because the burden of proof would be on the Crown to prove the driver had known they felt more intoxicated than usual before getting behind the wheel.
Also, what’s to stop a defendant from claiming they unknowingly got drunk from one of the recalled bottles? Could they argue that due to their sheer number and dissemination there is a reasonable doubt because any Bombay Sapphire gin they consumed might have been tainted?
Who knows if this would work in court, but it does raise the question of how much can we really trust liquor labels.
Consumers generally believe what they read on packaging but if this kind of error can happen not once but twice in the space of a few months, how do we know it hasn’t happened before and no-one realized it? There may be countless individuals out there with drunk-driving convictions because the amount of alcohol they put into their bodies was perfectly fine according to the label.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.