Over 80 mg
If you have been charged with “Over 80 mg” (Excess blood alcohol) and “blew” at or over 80 mgs, it is not a reason to plead guilty. A large number of “Over 80” charges in Toronto, and generally in Ontario, results in acquittal because it is a charge that is very technical compared to an impaired driving charge. A common defence against these is based on the violation of your constitutional rights or mistakes made by the police.
The Crown prosecution has a heavy burden of proof to get a conviction for an Over 80 mgs. The Crown has to prove that your blood alcohol content was at or over 80 mgs at the time of driving and not at the time of the tests. The blood alcohol level can fluctuate by either more alcohol absorbed from your stomach into your bloodstream or your body metabolizing alcohol and removing it from your blood. If there are issues with the timing of the police breath demands, it can be very challenging to prove the blood alcohol content at the time of driving.
If there is reason to believe that your blood alcohol concentration might have been under 80 mg at the time of driving, it is grounds for an acquittal. Please note that the results of a roadside test are solely evidence for the grounds for arrest, not for the actual blood alcohol level that would be used in a trial.
Impaired Driving (by Alcohol or Drug)
We can help you if you have been charged with a DUI/DWI, Impaired Driving (Impaired Operation), Driving Over 80 mg (Excess Blood Alcohol) or Refuse (Fail to Provide) Breath Sample. There is a good chance that you might be found not guilty!
Compared to a Refuse (Fail to Provide Sample) or Over 80 charge, an impaired driving charge is far less technical. You could be convicted simply based on the description of your driving and physical state (if the judge accepts it beyond a reasonable doubt).
There are some common physical criteria to determine this: the smell of alcohol, glossy, red or bloodshot eyes, a blank stare, unsteadiness on your feet, fumbling with documents, swaying, stumbling, slurry or incoherent speech, or a messy look.
During the trial, cross-examination by your impaired driving lawyer of the Crown’s witnesses is an essential tool to challenge their credibility and reliability, in order to raise a reasonable doubt as to whether your ability to operate a motor vehicle was impaired at the relevant time.
Can you help me if I have been caught smoking marijuana in my car, failed my coordination test at the station, and was charged with Impaired Driving (Impaired by Drug)?
Proving that you were unfit to drive at the time you were caught behind the wheel rather than at the time of the test will be very difficult for the Crown prosecutor. As the drug takes time to enter your bloodstream, it is not unusual to find reasonable doubt concerning your impairment at the time of driving, which would be grounds for an acquittal.
A charge of Refuse (Fail to provide) Breath Sample is laid when a police officer demands that you provide a breath sample into a roadside screening device or an approved instrument. Was it an approved screening device? If not, there is a good chance your charge could be dropped.
What is an approved screening device?
An approved screening device (ASD) is a small gadget that the police use to check for sobriety on the roadside. These devices are programmed to show “FAIL” if the test shows more than 100 mg of alcohol per 100 ml of blood (to ensure you have exceeded the 80 mg).
When can the police demand that I blow into the approved screening device?
The police need only a reasonable suspicion that you have alcohol in your body if they do have an ASD with them at the time of the stop. Typically, this is satisfied by the driver admitting to consuming alcohol or the smell of alcohol on the driver’s breath. In the absence of odour or admission, it is possible that the demand was unlawful, and therefore failing to comply would not be considered an offence.
What is an approved instrument?
Compared to an approved screening device, an approved instrument is a larger machine used to determine the concentration of alcohol in your blood with a high degree of reliability. If properly calibrated, these machines have less than a 10 % margin of error.
When can the police demand I provide a breath sample into an approved instrument?
It is essential that the police have reasonable and probable grounds to believe that you have either committed an offence of driving while impaired or an Over 80. These grounds differ by charge. In the case of an Over 80, it is a “FAIL” on the screening device, while for impaired driving, they are formed based on observation of signs of impairment and can also be based on hearsay (such as a radio call regarding bad driving) that can be used together with direct observations to issue a demand.
Impaired/Over 80/Dangerous Causing Bodily Harm or Death
Blood alcohol level over the legal limit — bodily harm
Everyone who, while committing an offence under paragraph s. 320.14(1) causes an accident resulting in bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.
Failure or refusal to provide sample — bodily harm
Everyone who commits an offence under subsection 320.15(1) and, at the time of the failure or refusal, knows that, or is reckless as to whether, they were involved in an accident that resulted in bodily harm to another person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years
Impaired driving causing death
Everyone who commits an offence under paragraph s.320.14(1) and causes the death of another person as a result is guilty of an indictable offence and liable to imprisonment for life.
Blood alcohol level over the legal limit — death
Everyone who, while committing an offence under paragraph s.320.14(1), causes an accident resulting in the death of another person is guilty of an indictable offence and liable to imprisonment for life.
Failure or refusal to provide sample — death
Everyone who commits an offence under subsection 320.15(1) and, at the time of the failure or refusal, knows that, or is reckless as to whether, they were involved in an accident that resulted in the death of another person or in bodily harm to another person whose death ensues, is guilty of an indictable offence and liable to imprisonment for life.
Driving a motor vehicle in a manner that is dangerous to the public is a criminal offence pursuant to s.320.13(1) of the Criminal Code of Canada.
What is the Difference Between Dangerous and Careless Driving?
A charge of Dangerous Driving is a much more serious allegation than that of Careless Driving. Of most importance, Dangerous Driving is a criminal offence under the Criminal Code of Canada, while Careless Driving is a charge under the Highway Traffic Act. A conviction for dangerous driving attracts serious criminal sanctions, including a possible criminal record and even jail time. In contrast, a conviction for careless driving, in the majority of cases, will result in a monetary fine and license demerit points.
What is Dangerous Driving?
To be convicted of dangerous driving the Court must be satisfied beyond a reasonable doubt that the driving, viewed objectively, was a “marked departure” from the standard of driving that was expected by a reasonable person.
In making the determination whether the driving in question was dangerous, a court must consider all the circumstances, including:
- the speed limit and other traffic signs;
- traffic conditions;
- nature of the road; and
- the weather conditions at the time of driving.
What is the sentence for Dangerous Driving?
Because the type of driving that could qualify as dangerous is wide, so too are the possible sentences, from a conditional discharge (which is not a criminal record) to a fine or a probation order. Where there are aggravating factors, such as an accident where injury resulted, a jail sentence is also possible.
What is Careless Driving?
Careless driving is an offence as per the Highway Traffic Act. It is defined in the HTA as driving a vehicle or street car on a highway without due care and attention or reasonable consideration for other persons using the highway. In the case of a conviction, you are looking at 6 demerit points (staying on your record for 2 years from the date of the offence.)
It can be challenging to distinguish between driving without due care or driving dangerously, so it can happen that different judges will interpret it differently as well. This makes it critical to get an experienced Toronto criminal lawyer with experience in defending these charges.
How Can You Win a Dangerous Driving Case?
It depends on the individual case. Because the determination as to whether the driving in question is dangerous depends on the facts found by a judge, a skillful and detailed cross-examination of the witnesses will often be the difference in the case. For example, a momentary lapse of attention does not necessarily constitute careless or even dangerous driving. It is therefore essential to have an experienced dangerous driving lawyer on your side to cross-examine and expose any weaknesses in the witnesses’ evidence.
Care & Control
Unlike in other countries, Canada has an offence of impaired (or Over 80 mg or refuse breath sample) while in “care or control” of a motor vehicle. So you don’t necessarily have to be actually driving a car to be charged with the offence. It is one of the trickiest areas for Toronto criminal lawyers, as different judges might interpret “care or control” differently.
Generally, there are three different ways the Crown prosecutor can prove “care or control.”
The first is to prove that you have been driving the vehicle (care and control is an included offence). This can be done by witnesses testimony or an admission by the accused that they was the driver. This makes it very important not to say anything to the police at the scene and while in custody. While not a very common case, it can happen, sometimes based on the defendant’s testimony. It is therefore essential to make an informed decision about whether to testify at a trial.
A second way the Crown can pursue to get a conviction would be to rely on the presumption that you were in care and control of the vehicle if you were found in the driver’s seat. However, the presumption can be defeated, which will typically involve the driver taking the stand to explain under oath why they were found in the driver’s seat. A possible rebuttal is that you can show that you were in the driver’s seat but not for the purposes of driving; this could include waiting for a designated driver, turning on the heat on a cold night or listening to the radio.
Finally, even if the presumption does not apply to you, such as not having been in the driver’s seat or having rebutted the presumption, the Crown may try to show that you used the car or its equipment in a way that would involve the risk of putting the vehicle in motion so it could become dangerous.
What Fedorowicz Law Can Do for You
Richard Fedorowicz has an exceptional track record defending charges of impaired driving. This can include charges of Over 80 mg, refusal of a breath sample and dangerous driving. Over the past 20 years, he has built a reputation for professional and detail-oriented advocacy. His litigation strategies are built on a comprehensive understanding of the case, attention to detail and the ability to keep up to date on the ever-changing intricacies of Canada’s law on impaired driving.
Contact Fedorowicz Law today at (249) 266-4222 for a free, confidential, no-obligation consultation.
Schedule a Meeting
Richard is always available to meet with you one-on-one to review the evidence, answer your questions and identify strategies for a successful result. Call today to schedule a no charge consultation. Richard acts for individuals facing impaired driving charges in Toronto, Mississauga, Brampton, Oshawa, Barrie, Hamilton, Newmarket and throughout Southern Ontario.
We provide legal services for other cases such as theft, fraud, and bail hearings.
Under section 320.14 (1) of the Criminal Code, a charge of Over 80 can be brought when someone drives with a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;
This charge is laid when a driver provides two separate breath samples, at least 15 minutes apart, at the police station in an approved instrument such as an Intoxilyzer, and the result of the lower of the two readings is equal to or higher than the legal limit of 80 mg of alcohol in 100 ml of blood.
The burden lies on the Crown to prove each charge beyond a reasonable doubt.
The key to understanding “care and control” is that the intention to drive is not part of the offence. Suppose you perform an act or series of actions involving using the car or parts of it, which could set the vehicle in motion and potentially put people or property around you at risk. In that case, you are considered in “care or control” of the vehicle.
Suppose a person impaired by alcohol or drugs sits in the driver’s seat with the car running. Depending on the actual situation, they could be found guilty of an impaired care/control charge if the court finds that there was a risk the vehicle could have been set in motion and created a dangerous situation even if the individual had no intention to drive.
As mentioned above, different judges may interpret individual cases differently, which makes it critical to contact an experienced impaired driving lawyer to help you navigate this complex legal process.
Different defence strategies can be developed to prove you were not in care or control. For example, a person sleeping may or may not be in care or control of the vehicle and thus be convicted or acquitted. They could have been waiting for a taxi or someone else to pick them up while having the motor running for heat or to listen to music. In these cases, the defendant may be able to create reasonable doubt that they had a clear plan not to drive and there was no risk of the car being put in motion. Every case like this depends on specific circumstances and has to be individually evaluated.
This makes the services of an experienced lawyer indispensable, as nuances can often make the difference between conviction and acquittal.
The standard of “reasonable grounds” includes both subjective and objective components. The subjective element is satisfied where the police officer honestly believes the suspect has committed a criminal offence, whether it be impaired driving or any other. Under the objective component, the question is whether the officer’s subjective belief is supported by objective facts. The test is met where a reasonable person in the position of the officer would be able to conclude that there were reasonable grounds for the arrest.
A court must consider the “totality of the circumstances” in determining whether the officer had reasonable and probable grounds to make the breath demand – those that lead away and toward conclusion that was impairment. Boiler plate evidence by an officer that the accused had an ordour of alcohol, slurred speech and glassy eyes are considered weak indicators of impairment. While an ordour of an alcoholic beverage confirms the consumption of alcohol, but says nothing about the effect of the consumption.
As a result, if after cross-examination by your impaired driving lawyer establishes that the police had no more than suspicion of impairment, the arrest and breath demand would be unlawful, which in most cases would lead to an acquittal.
The roadside screening device (ASD) is the test used by the police in order to determine whether there are grounds for the police to lay a charge of Over 80. While often associated to R.I.D.E. (“Reduced Impaired Driving Everywhere”) or spot check programs during the holidays and long weekends, the test can be administered by the police at any time.
The law however imposes different rules depending on whether the police have the ASD with them at the time of the vehicle stop:
If an ASD is not present at the time of the vehicle stop, a police officer must have “reasonable grounds to suspect” that the driver has alcohol or a drug in their body. For example, if the driver admits consuming alcohol or the officer detects the smell of alcohol on the driver’s breath, the “reasonable ground” requirement will in most cases have been satisfied.
In contrast, there is no “reasonable ground” requirement if the police officer at the time of the stop has in his or her possession an ASD. This means that if the police officer has the ASD available for immediate use, a demand that the driver take the ASD test can be made in the absence of any evidence of alcohol consumption.
Once the ASD test is administered, there are three possible results: a pass, warning, or fail.
- PASS: below 50 mg of alcohol in 100 ml of blood
- WARNING: between 50 mg and 100 mg
- FAIL: over 100 mg (despite the legal limit being 80 mg).
In the case of a pass, the detained person should be allowed to proceed on their way. If the device issues a warning, the individual will get a three-day licence suspension as a first-time offender, and their vehicle will be towed. Should the detainee fail the roadside test, they will be arrested on ‘reasonable and probable grounds’ that their blood alcohol level is above the legal limit of 80 mg of alcohol in 100 ml of blood.
Suppose a police officer has reasonable suspicion that you have been drinking and your ability to operate a motor vehicle is impaired by alcohol. In that case, they are entitled to “forthwith” make an approved screening device breath demand (ASD). While there are some narrow exceptions to this rule, it is safest to always comply with the demand as it is considered very risky to refuse and hope that the particular factual situation might qualify for an exception.
The arrest is followed by a demand for two formal intoxilyzer breath samples to be given at the police station. Whereas the roadside screening test only allows the police officer to decide whether to arrest the person on reasonable and probable grounds, the results of the Intoxilyzer tests will be used as evidence in a potential trial if the individual fails these tests as well.
An Intoxilzyer is a type of instrument that is approved by the Criminal Code to receive and make an analysis of a sample of a person’s breath to determine their blood alcohol concentration. (While the older versions are called breathalyzers, the modern approved instruments are known as “Intoxilyzer.”)
If a police officer has reasonable grounds to believe that a person has committed the offences of impaired driving or Over 80, the officer may “as soon as practicable” require that the accused provide two breath samples into the approved instrument, which will be analyzed to give the actual blood alcohol reading.
For example, suppose an individual is arrested after failing an approved roadside screening device test or impaired driving. In that case, they will be read a breath demand to provide breath samples into the Intoxilyzer and brought to the police station. A ‘breath technician’ officer at the station will be trained to operate these instruments.
The instrument will provide a computerized printout of the time of driving, arrest, demand and the actual readings as a percentage.
For example, if the printout reads “.116”, it means that the Intoxilyzer determined a blood alcohol level of 116 mg of alcohol in 100 ml of blood at the time stated.
Please note that these scientific instruments are not considered infallible by the Courts, who have recognized that they are only as good as their operator and whether they are correctly and consistently maintained. Working with an experienced impaired driving lawyer will ensure that any errors with the operation of the Intoxiyzer are identified, which can lead to a successful defence of the charges.
The impaired driving laws are covered in sections 320.11 to 320.4 of the Canadian Criminal Code. The charges include the following:
- Care and Control
- Driving Under the Influence
- Failure to Provide a Breath Sample
- Impaired Driving
- Over 80 mg BAC Reading
While the potential evidence required to prove each charge may be different, the Criminal Code penalties for a guilty verdict are the same.
Although commonly referred to as “Over 80”, in Canada the prohibited level of blood-alcohol concentration (BAC) is 80 mg per 100 ml of blood. In other words, a BAC at or above 80 mg is considered to be a criminal offence.
There are several possible consequences of an impaired driving conviction. Your insurance rates are going to be significantly increased. You could also be required to install an ignition interlock device in your vehicle. These devices require you to provide a breath sample to determine if you have been drinking before allowing you to start your car. Depending on the case, you may also face community service hours or, in more severe cases, jail time, particularly when there was an accident when someone was injured.
Impaired driving is a severe criminal charge, and it is in the best interest of any accused to ensure appropriate representation. Getting out of a DUI without going to trial is possible, but it strongly depends on the circumstances.
If you get charged with impaired driving, getting your charges dropped as soon as possible is crucial. The first step is to speak to an experienced criminal defence lawyer in Toronto. They can provide advice in a free and confidential no-obligation consultation, but they also know how to approach cases like this to lead to a drop of your charge.
There is no doubt that a DUI or impaired driving will significantly increase your insurance premiums for years to come. The only question is by how much. In some instances, it may lead to a cancellation or refusal to renew by your present insurer. That is why in the vast majority of cases, especially if there is no previous criminal record and no major aggravating factors with your case, there is little or no benefit to pleading guilty to a DUI charge.
Drinking and driving, or impaired driving, refers to offences such as driving with more than 80 mg of alcohol in 100 ml of blood (also known as Over 80) or refusing a breath sample.
The Crown prosecutor has to prove beyond a reasonable doubt that the driver’s ability to operate a motor vehicle was impaired at the time of driving due to the consumption of alcohol or drugs to establish an impaired driving charge. To assess the level of impairment, the Court will examine the driver’s coordination, comprehension and driving pattern.
The proof of the impairment can be achieved through a combination of driving and physical observations of the driver. Examples of driving observations to establish impaired driving include:
- Poor or erratic driving.
- Crossing the centre line.
- Evidence of a motor vehicle collision.
Personal observations that could show signs of impairment include the odour of alcohol on the breath, unsteadiness, slurred speech, bloodshot eyes, dilated pupils, or a lack of comprehension or response to police demands.
Police Evidence and Impaired Driving
To establish intoxication and impairment, the police do not require the opinion of a medical expert. A police officer or other layperson is qualified to give their opinion on whether a person appears impaired by alcohol or drugs. The Court must not give more weight to the opinions of police officers concerning a person’s level of impairment.
Unlike impaired driving, an “Over 80” offence does not require proof of impairment. In these cases, only proof that the driver had a blood alcohol concentration at or exceeding 80 mg of alcohol in 100 ml of blood is required. This requirement is typically established through the analysis of breath samples taken by the police and processed with an approved instrumen, such as a Intoxilyzer. In certain circumstances, blood samples can be seized by the police and be used to obtain results.
The choice of whether to demand a breath or blood sample lies with the police officer. However generally the officer may only order a blood sample if they believe that the person may be incapable of providing a breath sample due to their physical condition or if it would be impractical to obtain a breath sample. So, to establish the blood alcohol level of an accused, a blood sample is generally a process of last resort.
Refuse to blow or refuse to provide a breath sample
Another drinking and driving offence is the refusal to blow or provide a breath sample. A conviction on this charge is the same as a conviction for impaired driving, meaning a criminal conviction, driving prohibition, license suspension and the same insurance consequences. On top of this, a person convicted of this offence may also be convicted of impaired driving.
To prove beyond reasonable doubt that the accused is to be convicted of failing or refusing a breath sample, the prosecutor must establish:
- The police officer made a lawful and valid demand for the breath sample;
- The accused failed or refused to provide one; and,
- The failure or refusal was intentional or willful.
In most cases, the critical point is whether the police officer had a sufficient reason (“reasonable grounds”) to make the breath demand and whether the accused intentionally failed to provide the breath sample. For example, there may be a medical reason preventing an individual from giving a breath sample (such as a breathing disorder like asthma or an injury) which can make it challenging to comply with the demand for a breath sample.
The Validity of the Breath Demand is Often Central
The Crown must establish validity of the breath demand because the law only criminalizes disobedience to a lawful compulsion. In other words, if the police did not make a valid breath demand, you had the right to refuse to comply and should therefore be acquitted of a charge of refusing or failing to provide a breath sample. Importantly, that the police breath demand was valid must be established by the Crown beyond a reasonable doubt.
In the case of an Intoxilyzer breath demand, the Crown must prove the following three elements beyond a reasonable doubt:
(1) That there were reasonable and probable grounds to make the demand;
(2) That the officer made a valid approved instrument breath (Intoxilyzer) demand;
(3) That the demand was made “as soon as practicable”.
When is a breath demand made “as soon as practicable”?
The phrase “as soon as practicable” obligates the Crown to establish that the breath demand was made “within a reasonably prompt time”. Of importance is whether the evidence shows that the officers were attentive to their duty to administer the test “as soon as practicable” versus giving unreasonable priority to other tasks. The point being that if the police undertook tasks that could have been undertaken after the breath demand (even steps legitimately connected to the police investigation, such as the police officer searching for evidence or calling for a tow-truck), it can be successfully argued that the breath demand was not made “as soon as practicable”.
After an arrest, a person under investigation is entitled to consult with a lawyer to obtain advice about their legal situation before providing a breath sample at the station. Anybody under arrest also must be advised of the availability of a 24-hour toll-free legal aid number for those who wish to obtain legal advice but do not have a lawyer to call. Should the police fail to advise a person under arrest of these constitutional rights or provide the person under arrest with the opportunity to contact legal counsel, the defendant’s blood alcohol level readings obtained at the station may be excluded. Any exclusion of evidence likely results in an acquittal at trial.
At the time of a roadside demand for a breath sample, the right to consult with legal counsel is not absolute as the accused is not under arrest at that time. However, if the police cannot provide the roadside breath screening device in a timely manner, the person under investigation may have a right to consult with their lawyer. Depending on the individual case, a failure to permit consultation with counsel before providing the roadside sample may also result in the exclusion of the sample and any subsequent evidence.
As each situation is fact specific, it is critical to consult with an experienced criminal defence lawyer to establish whether the police have violated your constitutional rights during the investigation.
These are hybrid offences, meaning the Crown can proceed summarily or by indictment. The minimum fines are $1,000 for a first offence; 30 days imprisonment for a second offence; and, 120 days imprisonment for each subsequent offence, whether they are prosecuted by indictment or summary conviction. If the Crown proceeds by indictment, the maximum term of imprisonment is five years, and a maximum period of 18 months imprisonment is prescribed on summary conviction.
No matter which offence is charged, if bodily harm is caused, the offence is indictable with a maximum term of 10 years imprisonment. If death is caused, the offence is indictable, and the maximum term is life imprisonment.
Even a minimum sentence for an impaired driving offence means the convicted person will have a permanent criminal record. All drinking and driving offences carry a mandatory license suspension of at least 12 months.
While many people think they are the same, there is a distinct difference between impaired driving and Over 80 mg charges.
For example, a person can be charged with impaired driving even if their blood alcohol level is under 80 mg. This can happen if the person does not usually drink but is “impaired” or drunk after two or three drinks. They could be driving unsafely by swerving all over the road, show balance problems, slurring speech and other signs of impairment. On the other hand, a person with a greater level of tolerance might not be “impaired,” as in not showing any of the signs mentioned above of impairment but have a constant blood alcohol level above the legal limit.
The police can arrest you without demanding a roadside breath sample if you are showing signs that your ability to operate a motor vehicle is impaired by alcohol or drugs. Suppose the police believe they have reasonable and probable grounds to arrest you for impaired driving. In that case, they are allowed to do so without demanding a roadside screening device breath sample.
In the absence of signs of impairment, if the police only have suspicion that you may have consumed alcohol, such as you admitting that you have been drinking or if you have the odour of alcohol on your breath, the police must do a roadside breath sample screening test in order to determine whether there are grounds for a charge of operating a vehicle with excess alcohol (Over 80).
Should you pass this screening test, no criminal charges are laid, and you are free to continue. If you blow a warning on the screening test (meaning between 50 and 100 mg) you will receive a three-day administrative licence suspension, and your vehicle will likely be towed away, but no Over 80 charge will be laid.
If you fail the screening test (meaning that you registered at over 100 mg on the device), the police will arrest you for Over 80 and bring you to the police station for two further breath tests into an Intoxilyzer. If you pass these two tests at the police stations, there will be no grounds to charge you with the criminal offence of driving with excess blood alcohol and you should be free to go home.
Also, just the smell of alcohol on your breath or an admission that you have been drinking does not automatically prove that your ability to operate a motor vehicle has been impaired by alcohol. It only shows that you may have alcohol in your bloodstream, and the police must perform a roadside test to determine if your blood alcohol level is above the legal limit.
The roadside screening devices are calibrated to fail at a level of 100 mg instead of the legal limit of 80 mg to give you the benefit of the doubt. Importantly, the ASD results have no evidentiary value in court. They only allow the police to arrest you for Over 80 and demand two breath samples into an Intoxilyzer at the police station if you fail the roadside test. So, at a trial, the roadside test results are only allowed as grounds for the arrest of Over 80 but not as evidence in the trial.
In the case of a police officer arresting you for impaired driving without a screening test, an impaired driving lawyer will carefully review the police reports and determine if the arresting officer had sufficient reasonable and probable grounds for the arrest. If the review finds that there were not sufficient grounds for the arrest, the lawyer should serve and file Notice of Application asserting a violation of your rights under the Charter of Rights and Freedoms at least 30 days before the trial. Then it is up to the judge at trial to determine whether the breath samples should be excluded from evidence based on the lack of reasonable and probable grounds. This is called an application to exclude the breath samples under sections 8 and 24(2) of the Charter.
In most cases, if the judge rules on the application and orders the breath samples to be excluded from evidence, the accused will win their case and be acquitted of the Over 80 charge.
Filing a s. 8 and 24(2) Charter application is one common way of defending an ‘over 80’ charge. But every individual case is unique and has to be carefully reviewed and analyzed by an experienced impaired driving lawyer to assess the factual situation fully.
If a person refuses or fails to comply with a breath sample demand, such as declining or only faking to blow, they can be charged with refusing or failing to comply with the demand of providing the sample. Following this, the Crown must prove beyond a reasonable doubt that the refusal was “final and unequivocal.”
Should the Crown be able to prove a “final and unequivocal” refusal, there still are defences to refusing to provide a breath sample, such as having a “reasonable excuse,” many of which apply to the refusal of both breath demands at a roadside screening and an intoxilyzer breath demand.
There are different reasons that courts have accepted as reasonable excuses, such as medical reasons or potential mistreatment by the police throughout the breath testing procedure that led to the refusal. It is important to note that these are narrow exceptions, so it is risky to refuse to provide a breath sample in the hope that the case will be one of them “after the fact.” Each individual case is unique and has to be carefully examined. However, in most cases, an experienced impaired driving lawyer will advise the accused to provide a breath sample upon demand.
Before making an ASD, the police officer does not have to provide the person with their right to counsel. In most situations, the detained individual has no choice but to comply with this demand.
However, if the ASD is not immediately available and the device has to be brought to the scene of the investigation, the charges may get thrown out by a judge if a breach of your rights to counsel under s.10(b) of Charter of Rights and Freedoms is found, which will depend on the time that passes, because the person is under detention for too long, without receiving their right to counsel or the demand for a breath sample is not provided “forthwith.” An experienced impaired driving lawyer will be able to evaluate whether this argument could be successfully made in your case.
In the case that a driver shows obvious signs of impairment, a police officer will have reasonable and probable grounds that they are impaired. In this case, the police officer can arrest them without giving them an approved screening device demand. Instead, the driver will be read an “approved instrument” demand to provide two breath samples into a Intoxilyzer at the police station. The police must also provide them with their rights to counsel and allow them to speak to their lawyer or duty counsel if requested.
The first thing to do after an arrest for DUI is to contact a criminal defence lawyer. They will then assess your case to determine any available defences. They will also attempt to mitigate the consequences of the conviction.
Beyond a criminal record, a judge must impose a fine. For first time offenders, the quantum of the fine will depend on the level of the blood concentration:
- A fine of $1000 if the BAC is below 120 mg of alcohol in 100 mL
- A minimum fine of not less than $1,500, if the BAC is between 120 – 159 mg of alcohol in 100 mL of blood
- A minimum fine of $2,000, if the BAC exceeds 160 mg of alcohol in 100 mL of blood.
The costs for an impaired driving lawyer will vary from case to case, depending on the unique factual circumstances and the nature of the legal issues. The charges could be higher or lower depending on the specific case. (For example, if pre-trial motions must be filed, such as applications to exclude evidence under the Charter of Rights and Freedoms.) This is why speaking with a lawyer before making any decisions is essential.
The chances of getting a DUI charge dismissed vary with the factual circumstances of each case. Generally, it is not easy to get a DUI dismissed. However, an experienced impaired driving lawyer will be able to identify issues with the case (for example, by pointing out mistakes with the police investigation or violations of your constitutional rights) which can lead the Crown to offer a plea to a non Criminal Code offence (such as careless driving) or even an outright dismissal of the charge.
By writing to the involved police force, it is possible to get some arrests, such as one for DUI, expunged from your record to prevent them from appearing in a background check. Contact an impaired driving lawyer to determine if your individual case might qualify for an expungement.
Yes, a DUI conviction can impact your permanent residency in Canada, including potential deportation. As a result, it is even more important that non citizens speak to an experienced impaired driving lawyer at the earliest opportunity.
For a first offence, the Criminal Code of Canada provides a minimum fine of $1,000 in addition to a criminal conviction registered on your permanent record. Any subsequent impaired driving convictions carry minimum penalties, beginning with 30 days in jail for a second conviction. A third or subsequent drinking and driving offence will carry a minimum punishment of 120 days in prison.
A conviction for drinking and driving also will have other consequences, such as license suspensions and mandatory participation in an ignition interlock program.
Additionally, a conviction also will have a significant impact on your motor vehicle insurance and premiums. Depending on the severity of the conviction and if it has been a repeat offence, your premiums can dramatically increase or lead to the insurance company denying coverage.
In Ontario, the Highway Traffic Act of Ontario enables police to stop and investigate drivers for drinking and driving offences. They also are permitted to set up stop checkpoints to stop vehicles to check for signs of impaired driving, also known as RIDE (Reduce Impaired Driving Everywhere).
Anyone can be investigated for drinking and driving. The police officer does not require to suspect a person has consumed or is impaired by alcohol or drugs when beginning their investigation.
If the police do not have an ASD with them at the time of the vehicle stop, for an individual to be ordered to submit a roadside breath test, the police officer must reasonably suspect the individual has alcohol or drugs in their system. If the person under investigation has admitted to having recently consumed alcohol or drugs or if the person demonstrates visible signs of impairment, reasonable suspicion is generally present. The odour of alcohol from the mouth of a driver under investigation is enough to order a roadside breath test.
Once reasonable suspicion has been established, the police officer may order the driver to provide a breath sample into an approved screening device (ASD) for analysis. If the police fail to prove they had grounds to suspect alcohol had been consumed before making the demand for a breath sample could be used to defend the accused because an unlawful breath demand invalidates subsequent test results.
The roadside screening test will return either a “pass,” “warn,” or “fail.” The screening machines are calibrated to fail at a blood alcohol level of over 100 mg of alcohol per 100 ml of blood. A failure of the roadside test can not be used as evidence at a trial for an over 80 charge.
A failed test during the roadside screening test doesn’t prove the level of alcohol but can only be used to justify a further demand for a breath sample into an “approved instrument” at the police station that can provide a proper reading of the accused’s blood alcohol level. Once a driver fails the roadside test, the police officer can arrest the individual for an over 80 offence. An arrest for impaired driving may also accompany such an arrest if the person shows clear signs of impairment by either the manner they were driving the vehicle or by personal observations. An arrest will lead to the investigated driver being brought to the police station for two further tests that may be used as evidence during their trial.
There are different ways to defend against accusations of impaired driving. The approaches vary, from challenging the accuracy of the machine taking the breath sample to the officer’s reasons to believe there was reasonable suspicion to demand the breath sample in the first place.
Other defences may target denying constitutional rights before taking the breath samples or delays in the testing procedures. Impaired driving law is very complex and strongly depends on the factual circumstances, so speaking to an experienced criminal defence lawyer is essential to ensure you know your rights.
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