TORONTO - A change in legislation last year to a "two beer" defence that put a greater onus on an alleged drunk driver applies to cases in the system before the law change, Ontario's top court ruled Wednesday.

Before July 2, 2008, someone charged with driving over 80 - referring to the legal limit of blood alcohol concentration - could testify they just had two beers and have a toxicologist testify that wouldn't be enough to give a reading of over 80.

It's known as the "two beer" defence or the Carter defence.

"We didn't have to attack the machine, we did not have to prove the machine was faulty, we didn't have to prove the operator of the machine was incompetent or not operating it properly and we didn't have to link either one of those errors to the reading," said J. Thomas Wiley, a lawyer for the man in this appeal.

A Criminal Code amendment on July 2, 2008, changed the law to require an alleged drunk driver to prove the machine was malfunctioning or was operated improperly.

The man at the centre of this appeal, Samuel Dineley, was charged with impaired driving and driving over 80 on July 21, 2007, and was acquitted on July 24, 2008.

The Crown appealed but that judge held that cases in the system before July 2, 2008, could use the old law, the so-called Carter defence. The Crown appealed that ruling and on Wednesday the Ontario Court of Appeal granted it and ordered a new trial for Dineley.

That means as of Wednesday the amendment applies to anyone with an alleged "over 80" offence committed before July 2, 2008, with trials continuing or starting after that date.

"This issue is an important one: in Ontario there are approximately 3,000 cases in this category," the panel of judges writes in its unanimous decision.

Dineley's defence lawyers argued the change had effectively removed the Carter defence, but the Appeal Court judges disagreed.

"The Carter defence has not been virtually eliminated, neutered or abolished," they wrote.

"It has been changed, but it survives in a different form, subject as always to the ingenuity of defence lawyers and the new jurisprudence that the courts will inevitably enunciate."

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