But I blew over. Doesn’t that mean I’m guilty?

It is important to distinguish between factual guilt and legal proof.

As discussed elsewhere in the website, one of the most common misconceptions is that a failed breath test is conclusive evidence of guilt that can’t be challenged in court. Although Parliament and the courts have recently taken steps to severely limit challenges to the reliability of breath test results, the detention of motorists who are compelled to incriminate themselves in the course of involuntary sobriety tests engages a variety of constitutional issues including arbitrary detention, the failure to explain their reason for detention, unreasonable search and seizure and the right to counsel.

If a critical analysis of the case reveals investigative lapses or constitutional violations, then an application can be brought to exclude the readings. In some cases, although the evidence might be overwhelming, an application to stay the charges can be brought when the accused’s constitutional right to be tried within a reasonable time has been infringed. To see how I have successfully defended cases based on such arguments please see My Winning Record.

I’m a good person and have never been in trouble before, I have a good job, a family, no criminal record, need my license for work and/or to drive my kids around”. Will the crown just drop the charges because of this?

Most likely not.

Crown Attorney’s have a mandate to prosecute these types of cases and without some type of leverage (that being a problem with their case that they cannot fix, highlighted by defence counsel), a Crown is generally reluctant to offer a plea based on compassionate circumstances.

The fact that you have never been in trouble before and otherwise of “good character” rarely impacts the Crown’s position. Most people charged with drinking and driving cases have no criminal record and have never been in trouble before.

Should I plead guilty?

One of the most common questions people ask Michael is whether they should plead guilty. Unfortunately, this is a question that cannot be answered without at least a thorough, free initial consultation and then, more precisely, after being initially retained, an equally thorough review of your disclosure (documents setting out the Crown’s case against you).

Before pleading guilty, it is important to understand the consequences of doing so (see a detailed summary of penalties- [link], including the consequences of suffering a criminal record (possible restrictions on employment and/or travel), immigration consequences, license suspension and other less obvious consequences such as increased insurance, transportation costs, and more severe consequences if you are convicted a subsequent time.

To assist with making an informed decision in such a technical area you need the services of a competent attorney who specializes in these types of cases. To do so you can schedule a FREE consultation today with Michael Engel.

What are some possible defences?

Most defences are Charter driven. Generally speaking, there are 5 basic constitutional issues that are commonly engaged in a successful defence of drinking and driving cases: “arbitrary detention” (s. 9 of the Charter), “unreasonable search and seizure” (s. 8 of the Charter), the “right to be informed promptly of the reasons for your detention” (s. 10(a) of the Charter), the “right to counsel” (s. 10(b) of the Charter), and the “right to be tried within a reasonable time” (s. 11(b) of the Charter). SEE MY WINNING CASES [link]

Do I have a defence?

The defence of drinking and driving offences in Canada is incredibly complicated. In fact, most criminal lawyers who don’t practice exclusively in this area are understandably reluctant to take on these types of cases and if they’re not they should be.

Your best chance to win a DUI case is to retain someone such as myself who is well versed in the complexities of these types of prosecutions. SEE MY WINNING CASES [link]

What will happen on my first appearance and beyond? Do I have to appear on that date? What is the process?

If you did not give your fingerprints at the police station prior to release, you will be required to attend on the date listed on your release (usually a “promise to appear”) to do so. Depending on where you were charged this could be either back at the police division or else at the courthouse where your case is being tried.

It is important to note that if you do not retain a lawyer, your attendance at court is mandatory and the consequence for not attending court will likely be your arrest and a further charge of failing to appear in court.

If you retain Michael, you will not have to appear at the first appearance or, for that matter, the first several appearances. You simply need to sign a designation that allows counsel to appear on your behalf.

The initial court appearances are typically not in front of a Judge (depending on the courthouse) but rather in front of a Justice of the Peace and they are generally of an administrative nature relating to obtaining full disclosure in the case.

On your first appearance, the designation will be filed, typically “initial disclosure” is received, and the matter will be adjourned several weeks then and on each subsequent appearance until disclosure is complete. After all relevant information has been obtained you will meet Michael again to thoroughly review the case and discuss the best strategy to defend the matter.

What are the different options I have with my case?

Obviously, you can plead guilty at an initial appearance without knowing the strength of the Crown’s case and simply accept the consequences of a conviction. (see detailed summary chart of the penalties) [link].

A more prudent course however is to retain competent counsel to secure full disclosure and to review the case with a view to conducting a pretrial with the Crown to negotiate the best deal. When the Crown can be persuaded that the prosecution may not succeed, they are often agreeable to withdrawing the criminal charge in favour of a plea to careless driving under the Highway Traffic Act).

Where the Crown won’t agree to a deal despite the shortcomings of the case the final option is to take the matter to trial where the Crown will be required to prove the case against you.

How long will my case take from beginning to end?

This depends on what option you choose for your case. If you decide to plead guilty on the first appearance, your matter will likely conclude that day and sentence will be imposed.

Typically, should you retain counsel to review the merits of the case, disclosure won’t be  complete until at least 2 months from your first appearance, sometimes longer.

If you take your matter to trial, depending on the courthouse, you may not have a trial date until 1– 2 years from the alleged offence date.

I was charged, released and my license was automatically suspended for 90 days. Will I get my license back if my charge is still pending?

Yes, because you are presumed to be innocent and this is merely an administrative suspension arising solely from the fact of the charge.

After your administrative suspension is complete, you can get your license back by attending Service Ontario and paying a “reinstatement fee” (presently $281) as well as an “administrative monetary penalty” (presently $550). You can then continue to drive until your matter is complete.

Obviously, to keep your licence, you’ll need to win the case.

Will I get a criminal record?

Yes. If you are convicted of any form of DUI you will get a criminal record. Because this charge carries a “mandatory minimum” sentence of fine, other sentencing options that would otherwise allow you to avoid a “conviction” – such as a “conditional discharge”, are not available.

Will I lose my license? If so, for how long?

year for the first offence (see a detailed summary of penalties for the consequences of multiple convictions)- [link]

Despite that prohibition, the MTO offers an early interlock program where you can install an interlock device in your car and resume driving after either three or six months depending on whether you are a candidate for “Stream A’ or “Stream B”.

The basic requirement for Stream A eligibility is to resolve the case within 90 days of the charge. If you do so, pay the fine, complete a remedial program and show proof of a contract with an interlock company you can drive after 3 months with an interlock in your car for another 9 months.

After that Stream B eligibility kicks in which involves a six-month period of no driving followed by 12 months of interlock.
For more information on Stream A and B, please visit the Ministry of Transportation website – http://www.mto.gov.on.ca/english/safety/ignition-interlock-program.shtml

Will I go to jail?

Typically, a person with no related record who has not injured someone during the offence, does not go to jail.

If you have a previous related record however the Crown is obliged to seek a minimum, mandatory sentence of 30 days in jail.

What are the penalties associated with pleading guilty or being found guilty of a DUI?

The Ministry of Transportation in Ontario has created a detailed chart, demonstrating all the potential costs and penalties associated with impaired driving. Please view the chart below and for more information please visit their website – http://www.mto.gov.on.ca/english/safety/impaired-driving.shtml#penalties

First offence
• Licence suspension of at least 1 year
• You must attend a mandatory education or treatment program
• Requirement to use an ignition interlock device for at least 1 year
• You will need to undergo a mandatory medical evaluation to determine whether you meet the requirements for driving in Ontario
If you are a young or novice driver convicted in court for violating the zero tolerance requirements for drugs and/or alcohol, your driver’s licence will be suspended again for at least 30 days and you will receive an additional $60-$500 fine.

Second offence within 10 years
• Licence suspension of at least 3 years
• Minimum mandatory sentence of 30 days in jail if Crown serves Notice to Seek Higher Penalty
• You must attend a mandatory education or treatment program
• Requirement to use an ignition interlock device for at least 3 years
• You will need to undergo a mandatory medical evaluation to determine whether you meet the requirements for driving in Ontario

Third or more offence within 10 years
• Lifetime licence suspension, which may be reduced after 10 years if you meet certain criteria
• Minimum mandatory sentence of 4 months in jail if Crown serves Notice to Seek Higher Penalty
• You must attend a mandatory education or treatment program
• Requirement to use an ignition interlock device for at least 6 years
• You will need to undergo a mandatory medical evaluation to determine whether you meet the requirements for driving in Ontario

Why shouldn’t I have a paralegal or retired cop defend me. They promise to win, and they are a lot cheaper?

The simple answer to this question is that you get what you pay for.

If you want the best result as opposed to the cheapest alternative you need to retain legal counsel who specializes in the defence of these types of cases. Untrained agents, despite whatever experience they may have as witnesses or spectators to the legal process, simply don’t have the legal tools to ensure proper defence.

Sadly, there are many appellate decisions that review the “ineffective legal assistance” of paid agents. Although you may want a non-lawyer act for you a trial judge also has the power to prohibit such representation where an issue of competence arises. Although no one can be forced to retain a lawyer it is important to consider the cost of losing the case – which is discussed in the next FAQ.

The Cost and Consequences of Impaired Driving

MADD (Mothers Against Drinking and Driving) calculated the financial and social costs of impaired driving are they are staggering – See https://madd.ca/pages/impaired-driving/overview/the-financial-cost-of-impaired-driving

Although the costs and consequences vary between the different provinces and territories, a single impaired driving incident can trigger a range of sanctions, including administrative licence suspensions and administrative vehicle impoundments. Other sanctions such as the requirement to use an ignition interlock device or the need to attend a comprehensive remedial treatment program may also apply.

Further, the same incident of impaired driving that triggered provincial/territorial sanctions can trigger criminal charges, which might lead to a conviction under the Criminal Code, fines, jail time, and expensive legal fees. In addition, most provinces impose lengthy licence suspensions on drivers convicted of most federal alcohol and drug-related driving offences, failing or refusing to submit to a required test, or driving while prohibited or suspended for a federal impaired driving offence.

The costs and sanctions below are based on an impaired driver who is caught while driving on a public road. This example outlines one province’s sanctions. Although these sanctions will generally be similar to those in other jurisdictions, there will be some variation. The driver in this hypothetical has been charged and convicted of the offence commonly referred to as an “Over 80” (Criminal Code, s. 320.12(b)). This offence is considered to be one of the less serious impaired driving offences. The costs and consequences associated with impaired driving are much more severe if injury or death resulted from the impaired driving incident. Repeat offenders are also subject to more severe costs and consequences.

Total Costs:
• $45,256-53,765+
Provincial Sanctions ($4,765+)
• 90-day administrative licence suspension
• 7-day administrative vehicle impoundment
• 1-year post-conviction licence suspension (reduced to 3 or 6-months in certain circumstances)
• Minimum 45-day post-conviction vehicle impoundment
• $1,800+ impoundment fee
• $550 administrative penalty
• $281 licence reinstatement fee
• $634 for remedial program for convicted impaired drivers
• $1,500+ for the use of an ignition interlock for one year (less in certain circumstances)

Criminal Sanctions + Legal Fees ($4,500-7,000+)
• $1,000 fine
• Jail time
• 1-3-year federal driving prohibition
• 3,500-$4,000 for a plea or withdrawal or $6,000 for a one or two-day trial (If your case takes longer, the costs will be higher.)
• Criminal Record

Insurance Costs ($36,000-$42,000)
• $8,000-$10,000+ a year for three years for a facility insurance policy. (In provinces with private insurance 3 years of facility insurance is typically required. Jurisdictions with public insurance do not have facility insurance but will typically raise the insurance rate of drivers with impaired driving convictions.)
• $4,000+ a year for three years following the facility insurance policy assuming a normal insurance rate of $2,000 a year. (The insurance rate is typically double the normal rate for a further three years for a total of 6 years of increased insurance cost.)

Warn Range
Drivers who are below the criminal BAC threshold of 0.08% but above the provincial threshold (typically 0.04% or 0.05%) are also subject to costs and consequences. While these drivers will not face criminal sanctions, in one province these drivers are subject to:
• 3-day administrative licence suspension
• $250 penalty
• $281 licence reinstatement fee
• Insurance consequences
Some jurisdictions include administrative vehicle impoundments as part of these sanctions. Sanctions and penalties vary between jurisdictions and typically increase for subsequent occurrences.

New and Young Drivers
Young and novice drivers (i.e. drivers in the graduated licencing program and drivers under a certain age, typically 21 or 22) are generally required to maintain a BAC of zero and/or have no detectable level of cannabis or certain other drugs in their body. If these requirements are breached, drivers in one province suffer the following costs and consequences if they blow within the warn range:
• Immediate 3-day administrative licence suspension
• 30-day administrative licence suspension if convicted of a provincial offence
• $60-500 fine if convicted of a provincial offence
• $250 penalty
• $281 licence reinstatement fee
• Possible licence cancellation if convicted of a provincial offence.
• Insurance consequences

You must also take into consideration lost wages due to court time, subsequent insurance costs (if it wasn’t a first conviction), towing and impound costs, third party costs (damages incurred by other parties) and secondary transit costs due to lack of driver’s license.
Further, more detailed penalties for drinking and driving infractions can be found on the Ontario Ministry of Transportation website – http://www.mto.gov.on.ca/english/safety/impaired-driving.shtml#immediate

Immediate Penalties for a BAC in the Warn Range, Failing a Standardized Field Sobriety Test or Violating Zero Tolerance

First offence
• 3-day licence suspension. This cannot be appealed.
• $250 penalty

Second offence within 5 years
• 7-day licence suspension (3-day suspension for commercial drivers). This cannot be appealed.
• $350 penalty
• You must attend a mandatory education program (for a second occurrence within 10 years)

Third and subsequent offences within 5 years
• 30-day licence suspension (3-day suspension for commercial drivers). This cannot be appealed.
• $450 penalty
• You must attend a mandatory treatment program (for third and subsequent offence within 10 years)
• You will be required to use an ignition interlock device for at least six months (for third and subsequent offence within 10 years)
• You will need to undergo a mandatory medical evaluation to determine whether you meet the requirements for driving in Ontario (for fourth and subsequent offence within 10 years).

In addition to the penalties above, you will also face a $281 licence reinstatement fee each time your licence is suspended. Young or novice drivers may also be charged under the Highway Traffic Act and if convicted, you will face an additional suspension and fine.

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