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DUI & Over 80 Defence Lawyer

DUI & Over 80 Defence Lawyer

Drinking and driving offences are among the most common charges laid by police; according to Statistics Canada, they make up more than 10% of all criminal charges, and over 50,000 trials across Canada each year. There are several reasons for this. One is the “zero tolerance” policies that governments and police departments have put in place in recent years. Another is that drinking and driving is an activity that cuts across all lines in society: socio-economic, cultural, and age.

The penalties for drinking and driving offences are severe. Even on a first offence, you will be convicted and burdened with a criminal record. Your driver’s licence will be automatically suspended for a year; and you will have to pay a fine of at least $1,000. In addition, your insurance rates will go up significantly. For second offences or higher, the minimum penalties include jail time.

Because these penalties are automatic minimum penalties, and because of the government’s zero-tolerance policies, there is little room for negotiation, and these cases tend to go to trial far more often than other cases. Very few people in society today can afford to have a criminal record, or to lose their licence for a year.

Drinking and Driving Offences/D.U.I.

There are three main drinking and driving offences in the Criminal Code: Impaired Driving (also known as a “D.U.I.”), meaning “driving while under the influence”; “Over 80“; and Refusing to Provide a Breath Sample. Impaired Driving means that you were operating a motor vehicle, or were in “care and control” of a motor vehicle, while your ability to do so was impaired by drugs or alcohol. Impairment can be determined in a number of ways: from the pattern of driving, for example; or police-administered field sobriety tests; to physical indicia such as slurred speech, red-rimmed watery eyes, or unsteadiness. “Over 80″ means that you were operating a motor vehicle, or were in “care and control” of a motor vehicle, while you had a blood alcohol concentration (BAC) of greater than 80 mg of alcohol in 100 ml of blood. The police will conduct a scientific analysis of seized samples of your breath or blood to determine your BAC at the time of driving. Refusing to Provide a Breath Sample means that you did not cooperate in providing breath samples so that your blood alcohol concentration could be analyzed. The legal analysis will focus on what point the inability of the police to obtain a sample is due to the unwillingness of the subject, and the reasons for the refusal.

The Criminal Code definitions of these offences are set out below:

Operation while impaired

  • 253. (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,
    • (a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
    • (b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
  • For greater certainty
    (2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(a) includes impairment by a combination of alcohol and a drug.
    R.S., 1985, c. C-46, s. 253; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 59; 2008, c. 6, s. 18.

    • Testing for presence of alcohol or a drug
      (2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:
    • (a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and
    • (b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
  • Failure or refusal to comply with demand
    (5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

Preparing Your Defence in a Drinking and Driving Case

Drinking and driving cases are complex, especially in “Over 80″ cases, because the evidence is based on scientific analysis of your breath or blood by a machine, and because the rules are lengthy and difficult to understand for people who are not lawyers or scientists. Take for example just one sub-section of the Criminal Code rule relating to the admissibility of the blood alcohol readings:

  • s.258(1)
    • (c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection
  • 254(3), if
    • (i) [Not in force]
    • (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,
    • (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
    • iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;

Because of the seriousness and complexity of these criminal cases, you need a lawyer who knows how these cases are investigated and prosecuted, and who has a great deal of skill and experience in defending them. At the same time, the complexity of the rules and evidence in these cases presents an opportunity to win that is quite different from other types of cases, such as where credibility is central, for example. Because the Crown bears the burden of proof, any break in the chain of evidence between the observations of the witnesses, and the analysis of the breath or blood samples, might result in an acquittal. A break in the evidentiary chain can be caused by a lack of reasonable suspicion to justify a demand that you breathe into an alcohol screening device at the scene, or a lack of reasonable and probable grounds to arrest you and demand that you provide samples of your breath or blood for blood alcohol analysis. If the police do not act “as soon as practicable”, or within a two hour time limit, there are consequences that can be deployed in your favour. If the police did not provide you with an opportunity to consult counsel, or did not have grounds to stop your car, your constitutional rights might have been violated, and the case dismissed.

As with all criminal cases, early, detailed and thorough preparation is the key to a successful outcome.

At The Defence Group, we will begin preparing your case by taking you through all of the details of what happened, including the nature, quantity and timing of any drinks that you had, the circumstances surrounding the driving, and the conduct of the police. We will analyze all of the evidence that the police and Crown have in their possession, as well as any information that we gather privately, from witnesses or other sources. We will also work with a forensic toxicologist to determine whether the screening device or the Intoxilyzer machines used by the police were operating properly, based on calibration logs and maintenance records. The toxicologist will also analyze the alternative drinking scenarios put forward by Crown and defence to help us prepare our strategy. We can also engage an expert to perform tests to determine your actual rate of alcohol elimination, which might differ from the average rates used by the police. There are a multitude of techniques and strategies that we can employ, tailored to fit the specific details of your case.

The law changes quickly in the area of drinking and driving, and you need a law firm that keeps up to date. For example, Ontario is now in a period of transition, where the regulations relating to Alcohol Interlock devices are finally coming into force after years of delay. The Interlock device represents a whole new era in this field, where cases are being settled without resorting to the absolute driving prohibitions of the past. You need a criminal defence law firm who can take advantage of these opportunities as they arise, and who can be creative and innovative in their approach. Taking this kind of pro-active approach will win the case, and often save you a great deal of time and money as well.

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