Most Common Questions
Impaired driving generally means “Drunk Driving” and is not the same as an “over 08”. In Canada, impaired driving is an offence under the Criminal Code, section 253(1)(a). The question to ask is “was your ability to operate a motor vehicle impaired, even slightly, by alcohol or drugs?”
This charge is typically proven by an officer testifying to indicia of impairment observed and/or by video evidence either at the scene or the station. The admission of drinking alone is not evidence of impairment but only consumption. Similarly, the smell of alcohol alone is not evidence of impairment and again only of consumption.
For the Crown to prove this charge beyond a reasonable doubt, they need only prove “slight” impairment. Further, someone can be under the legal limit and still be found to be impaired. If you are facing both an impaired and over 80 (or refuse) charge, being acquitted of the impaired charge will not automatically result in an acquittal on the over 80 (or refuse) charge as well. Lastly, even if you have no alcohol in your body, if you were using marijuana, or other drugs (even prescription) and this affected your ability to drive a motor vehicle, then you could also be convicted under this section.
The charge of “Over 80” means that the blood alcohol concentration (BAC) in your body was over the legal limit of 80 mg per 100 ml of blood. In Canada, being “over 80” is an offence under the Criminal Code, section 253(1)(b). This does not necessarily mean you were drunk or the alcohol you consumed had any impact on you other than increasing your BAC. It is a charge separate from “impaired driving” and is proven and defended in an entirely different way than the charge of impaired driving.
This charge is typically proven using a certificate of analysis which is a document signed by the breath technician attesting to the breath samples you provided and the time you provided them. This is the document that defence would seek to exclude or find inadmissible as it could, if admitted, prove the offence against you. There are a number of requirements that the Crown must show are met before the certificate can be admitted, including that the first sample was taken within 2 hours of the time of driving and the samples were taken “as soon as practicable”. If these requirements and others are proven beyond a reasonable doubt, then the Crown can rely on the “statutory presumption” (a convenient short cut allowing the certificate to be admitted and the readings which are to be presumed to be your BAC at the time of driving).
If the Crown calls an expert then they no longer need to prove these requirements nor rely on the certificate of analysis, but rather rely on the opinion of that expert. If the Crown has chosen this route then other defences may be available to you such as a “Carter” defence where an accused person testifies to how much they had to drink (Note: this defence is no longer available generally speaking, but only when the Crown is not relying on the statutory presumption).
The difference between impaired driving and over 80 is best illustrated by an example. Some people simply have no tolerance for alcohol, due perhaps to their youth, inexperience in drinking or even health issues. In cases such as these, even one or two drinks will dramatically affect their sobriety. If they were pulled over in such a state they would be arrested immediately for impaired driving, as they would exhibit clear indicia of impairment. They may well even blow under the legal limit but they will nevertheless face a charge of impaired driving because, despite the relatively minor amount of alcohol that they had consumed, the effect on their ability to drive would be obvious and pronounced. Conversely, some people such as heavy drinkers and alcoholics can consume inordinate amounts of alcohol, have readings of over 300 mg in 100 ml of blood and still betray no signs of impairment whatsoever.
While you can face both a charge of impaired driving and over 80, by law you cannot be convicted of both; however the consequences of being convicted of either are the same. What this means is that you need to also beat both charges to avoid those consequences. It is no consolation to beat one charge and be found guilty of the other.
The charge of “refusal” or “failure to provide a sample” means that when demanded by a police officer, either at the roadside or at the police station (or R.I.D.E. truck) to provide a breath sample, you “refused”. In Canada, refusing a lawful demand is an offence under the Criminal Code, section 254(5). The charge refers to a person either being unwilling or unable to provide a breath sample. The breath demand can either for a sample demanded at the roadside (to blow into the roadside screening device, “ASD”) or into the breath machine (usually at the police station or R.I.D.E. truck).
Michael is often asked whether “I should have provided the sample or not”. There is no straightforward answer to this question and whether someone was legally justified to refuse a demand (and be acquitted after being charged) will depend on each unique individuals circumstances and case.
There is a common misconception by many motorists that if they “do the right thing” and try to “sleep it off” either in the parking lot or at the roadside that they are immune from prosecution. Unfortunately, this is not the case because it is also considered a crime to be “in care and control” of a vehicle either when impaired or over 80.
An individual is “presumed” to be in care and control of a motor vehicle under section 258(1)(a) of the Criminal Code “where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle”. This presumption applies UNLESS “the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle… in motion”.
The presumption operates unless the accused “establishes” that he or she did not occupy that seat or position for the purpose of setting the vehicle in motion. In order to rebut this presumption, typically a person will have to testify, leading evidence of an alternative intention of entering the vehicle such as waiting for a friend to pick them up or using the vehicle for warmth until some alternate means of transportation is available such as a taxi.
There are a number of defences to the charge of being in care and control of a motor vehicle including: “no risk of danger”, “the alternate plan”, and “inoperable vehicle”; however, every case is unique and will impact which defences are available.
Depending on the courthouse your matter is scheduled for and what your release was, you may have both a first appearance at the courthouse and a first appearance for fingerprints. If you did not give your fingerprints at the police station prior to release, you are required to attend on the date listed on your release (usually a “promise to appear”) even if you retain a lawyer to give your fingerprints.
If you retain Michael, at least initially, you will not have to appear at the first appearance or the first several appearances. You would sign a designation that allows Michael to appear on your behalf.
Your first several appearances are typically not in front of a Judge (depending on the courthouse) but rather in front of a Justice of the Peace and generally can be considered “administrative”, mainly consisting of obtaining disclosure, requesting further disclosure (if missing) by the defence and obtaining that further disclosure. On your first appearance, the designation will be filed, typically “initial disclosure” is received and the matter goes over for 3 – 4 week periods until disclosure is complete. After disclosure is complete, you will meet Michael again to thoroughly review the disclosure together and discuss strengths, weaknesses, options and strategies for you case going forward.
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 further charges. Without a lawyer, the Justice of the Peace and the Crown will want to move your case forward as quickly as possible, and want to know early on what your intentions are in terms of either pleading guilty or setting a trial date (despite the fact that you may not have all the disclosure you are entitled to). Without a lawyer, you will also have to conduct your own pre-trials (meetings) with the Crown and possibly the Judge. Further, while you are expected to arrive at the time court opens (usually 9 or 10 AM) you should be prepared to wait all day for your matter to be addressed as counsel matters have priority.
There are essentially 3 options for your case. Firstly, you can plead guilty on the first appearance, unknown what the strength of the Crown’s case is against you and accepting the consequences of pleading guilty to this type of offence (see detailed summary chart of the penalties). Secondly, and once disclosure is complete and reviewed, you can either plead guilty to the original charge (if this is the only option, the Crown is not willing to negotiate anything better and the case against you is strong upon reviewing disclosure) OR plead guilty to something better that Michael was able to negotiate for you (such as a careless driving charge under the Highway Traffic Act). Lastly, you can take the matter to trial where the Crown is required to prove the case against you.
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 the consequences (sentence) will commence that day. Typically, disclosure is not complete until at least 3 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 1.5 – 2 years from the alleged offence date.
Yes. After your administrative (non-criminal) suspension is complete, you may apply to get your license back (there is a fee associated in doing so) and if your charge is still pending (and there are no other charges or reasons why your license would remain suspended such as unpaid tickets etc.) then you can continue to drive until your matter is complete (or indefinitely if you are found not guilty).
If you are convicted of impaired driving, over 80 or refuse breath sample you will get a criminal record. Because this charge has what is called a “mandatory minimum”, other sentencing options that typically allow you to avoid a criminal record while still pleading guilty, such as a “conditional discharge”, are not available.
Regularly however, Michael is able to negotiate a resolution for an individual to instead plead guilty to the charge of “careless driving” under the Highway Traffic Act which allows an individual to avoid a criminal record (as the charge is not under the Criminal Code). The consequences of pleading guilty to “careless driving” range from a fine and a restriction on someone’s driving to absolute no driving to interlock. All of which depend on the circumstances of the case, the courthouse and the Crown Attorney offering the resolution position.
If you are convicted of impaired driving, over 80 or refuse breath sample there is a mandatory minimum driving prohibition of 1 year for the first offence (see detailed summary of penalties for the consequences of multiple convictions); however, depending on the circumstances of your case, there may be a longer prohibition. Depending on the circumstances, stream A & B allow an individual (through the province and not the Criminal courts) to install an interlock device in their car after a period of less than a year (if certain requirements are met).
If Stream A (available if you plead guilty within 90 days of your offence date) is something you would like to consider during the disclosure review process (and you retained Michael) then this is a date we will keep you apprised of as an option.
For more information on Stream A and B, please visit the Ministry of Transportation website.
Typically, a person with no related record who has not killed or injured someone in the course of the offence, does not go to jail; however, there are circumstances where this could happen. If you are convicted of 2 offences within 2 years then the mandatory minimum is 30 days in jail.
|No. of Instances||Penalties|
|First||· Mandatory education or treatment program
· 1 year minimum requirement to drive a car equipped with an ignition interlock device
· No minimum jail sentence
· $1,000 fine
· Licence suspended for minimum 1 year*
|Second||· Mandatory education or treatment program
· 3 year minimum requirement to drive a car equipped with an ignition interlock device
· 30-day minimum jail sentence
· Fine amount at the discretion of the judge
· Licence suspended for minimum 3 years
|Third||· Mandatory education or treatment program
· Variable interlock periods (depending on sequence of prior convictions)
· 120-day minimum jail sentence
· Fine amount at the discretion of the judge
· Lifetime licence suspension (can be reduced to 10 years if certain conditions are met)
*The Reduced Suspension with Ignition Interlock Conduct Review Program allows eligible drivers convicted for the first time of an alcohol impaired driving offence under the Criminal Code to reduce their license suspension in return for meeting specific requirements, such as the mandatory installation of an approved ignition interlock device in their vehicle.
*It should be noted on being charged your vehicle will also be immediately impounded for 1 week.
One of the most common questions people ask Michael is whether they should plead guilty. Unfortunately this is an answer that cannot be answered without at least a thorough FREE consultation and then, more precisely, after being initially retained, a thorough review of your disclosure (documents setting out the Crown’s case against you).
Before pleading guilty, understand the consequences of doing so (see detailed summary of penalties), 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. Also, ensure that your case is not a case that can be won and such consequences can easily be avoided by hiring a competent lawyer such as Michael. To assist in your decision process, you can schedule a FREE consultation today with Michael Engel.
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), “right to counsel” (s. 10(b) of the Charter), the “right to be informed promptly of the reasons for your detention” (s. 10(a) of the Charter) and the “right to be tried within a reasonable time” (s. 11(b) of the Charter).
Other non-constitutional defences include: the breath samples not being taken “as soon as practicable”, the first sample being taken outside of the 2-hour mark, an absence of a breath demand (samples not taken pursuant to a valid demand), the breath demand not provided “as soon as practicable”, and the roadside breath sample not taken “forthwith” to name a few.
The law, prosecution, defence and litigation surrounding drinking and driving offences in Canada is incredibly complicated. Even a criminal lawyer not practising solely in the area of drinking and driving will be unlikely to provide any better advice than a lawyer practising in an entirely different area of law, such as corporate law. Dedication solely to this area of criminal law is essential in determining whether or not you have a defence.
It is impossible to know if you have a defence by simply reading the information on this website or others. The only way to know whether you have a defence is to have a lawyer solely practising in this area of criminal law thoroughly assess your case. You can schedule a FREE consultation with Michael TODAY as every case is unique in its facts, circumstances and defences. Michael prides himself on the notion that if there is a defence in your case, he will find it. Conversely, if your case is hopeless he will also tell you so.
No. Legally the Crown still must prove their case beyond a reasonable doubt. There also may be relevant Charter arguments and applications to be brought which could lead to the breath samples and/or other evidence being found inadmissible. Such arguments are often thought of as “technicalities” however, in reality, are quite the opposite. Living in a free and democratic country you are entitled to the protections outlined under the Charter of Rights and Freedoms, and when such rights are violated, although seemingly irrelevant to the average person, this violation can result in a finding of NOT GUILTY. The reason for this is that judges (and the courts) are responsible for protecting our constitutional rights and ensuring there are consequences for the police violating those rights.
Most likely not. It is possible, as Crown Attorney’s do stay charges but only in extreme circumstances in these cases and if they do, it will have to do with the circumstances of your case, and not anything to do with your personal circumstances.
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 likely to not even offer a plea to anything less than initially offered on the Crown screening form (that being anything less than the mandatory minimum).
Unfortunately, the fact that you have never been in trouble before, have other “good character” or other work/family considerations will have no impact on what the Crown’s position will be on your case. The majority of Michael’s clients and drinking and driving cases in general are in fact drivers with no criminal record and have never been in trouble before.
Although no one can be forced to retain a lawyer when they don’t want one it is important to consider the COST of LOSING the case as a result of not hiring effective and competent legal counsel. The following is an approximation of the average immediate costs of an over 80 conviction for a first time offender who has not caused damage to him/herself.
|Back on Track program
(est. at $2,000 to $10,000)
|License reinstatement fee||$150.00|
($4,500/year for 3 years)
|Ignition Interlock||$1,300.00 (approx.)|
*We are able to estimate $18,425.00 from only the relatively static costs. 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 a lack of driver’s license.
*The penalties are of course much more severe for subsequent convictions or if there was an accident involved. If you have killed or injured someone you could face life in prison for impaired driving causing death or 10 years for impaired driving causing bodily harm (injury).
Have you been charged with impaired driving, DUI — over 80 in the Toronto, GTA or Surrounding areas?
Get a FREE initial consultation with Michael Engel, DUI Lawyer.