DUI, DWI, Impaired Driving, Over 80
DUI, DWI, Impaired Driving, Over 80

Defending a Charge of Drinking and Driving

Most people are familiar with the commonly used phrase of driving under the influence or DUI. The offence is also often referred to as driving while impaired or DWI.  Drinking and driving law is referenced in sections 253-259 of the Criminal Code which contain the procedures and offences that comprise this exceedingly complex and complicated area of law.

In Canada, section 253(1) of the Criminal Code creates to two distinct type of offences:

  1. operating a motor vehicle, vessel, aircraft, or railway equipment while the ability to do so is impaired by the consummation of alcohol or a drug (commonly referred to as “impaired driving”) and
  2. driving with more the 80mgs of alcohol in 100ml of blood (commonly referred as an “Over 80” offense).

The difference between the two offences is that impaired driving refers to an operator of a motor vehicle (or boat or plane) who is physically impaired.

The Over 80 offence refers to an operator who is chemically impaired because their blood contains more than 8% alcohol.  Additionally, there are two related offences of having care and control of a vehicle while impaired or Over 80.

The punishment for being convicted of drinking and driving are specified in sections 255 and 259 of the Criminal Code as follows:

  1. For a first offence, a minimum fine of $1000 and a one year driving prohibition.
  2. For a second offence, a minimum of 30 days jail and a two year driving prohibition.
  3. For a third and subsequent offence, a minimum of 120 days jail and a three year driving prohibition.

Like all other aspects of this area of law, the punishment sections are actually more complex and much will depend on the province and the circumstances of the offence. Note that the law applies whether operating a motor vehicle (car, truck, motorcycle, motorized wheelchair) on any roadway, a vessel (boat) on any waterway, or an airplane anywhere in Canada.

In most instances, a simple scenario plays out like this: a driver is stopped by police at the roadside.  The police look for indicia of consumption of alcohol (or drugs – but that’s for another time.)  If police suspect consumption of alcohol, they will ask the driver to provide a sample of their breath by blowing into an approved screening device (ASD) forthwith. Failure to do so, (a “refusal”) is a criminal offence, punishable with the same penalties as if the driver is found to be impaired. The approved screening device will register either a pass, warn or fail.  A ‘fail’ provides the officer with reasonable and probable grounds to demand a sample of breath into an approved instrument such as an Intoxilyzer 8000 which measures the quantity of alcohol in a person’s blood.  The test is administered by a certified technician, who is also a police officer, in most instances at a police station. Prior to the test, the suspect driver will be told that they have the right to retain and instruct counsel. They will have an opportunity, and one that they should exercise, to speak with a lawyer.  Once they have finished speaking with a lawyer, they will be required to provide a sample of their breath by blowing into an approved instrument. If the results measure over 80mgs of alcohol in 100mgs in blood, then they will be charged with that offence.  Failing or refusing to blow into the instrument (“refusal”) is an offence, punishable as if found to be impaired.

One essential element of the offence of ‘Over 80’ or ‘refusal’ is a “lawful demand” to blow into an approved instrument. If the approved instrument demand was based on reasonable and probable grounds such as an ASD ‘fail’ and if the instrument demand was made in conformity with the law that authorizes it as specified in section 258 of the Criminal Code (as soon as practicable, etc.) then it is a lawful demand.  Absent a reasonable doubt or reasonable excuse on another element, a conviction will follow.
In order to mount a successful defence to the charge of ‘Over 80’, the person accused of the crime (“the accused”) must prove that the police officer’s actions were unlawful.  A police officer is acting unlawfully when:

  • There was no basis to stop the motor vehicle in the first place.
  • The accused does not blow a ‘fail’ on the ASD
  • The person is unable to blow into the ASD forthwith due to no fault of their own, such as the ASD not being available. What constitutes ‘forthwith’ is the discussion of considerable litigation and requires the expertise of lawyer familiar with this area of law and section 254(2)(b) of the Criminal Code.
  • The accused is not afforded their right to speak to a lawyer. Whether it is because the police neglect to tell the accused, the accused is unable to understand the right or some other reason depends on the situation and again requires the expertise of a lawyer familiar with this area of law and section 10(b) of the Charter of Rights and Freedoms
  • The accused is not read a demand that is in accord with their charter rights and the criminal code.
  • Issues arise with the operation of the approved instrument such as non-compliance with section 258 of the Criminal Code. This is a particularly difficult area to litigate and the subject of much debate in our courts.

There may be additional defenses, such as there being a valid legal reason to refuse to blow into either the ASD or approved instrument.

Returning to the scenario outlined above, if as part of the facts, the police officer did not have an ASD available for 20 minutes, that may be a situation where the ‘forthwith’ requirement is not met. In that instance, the accused would want to exclude the results of the ASD (the ‘fail’) because it was illegally obtained.  Once the results of the ASD are excluded, then the police officer lacks the reasonable and probable grounds to demand the accused to blow into an approved instrument.  Without a “lawful demand”, the seizure of the breath sample is unlawful and the accused would be acquitted.  Simple right? Not so fast.

Evidence can only be excluded pursuant to an application under section 24(2) of the Charter of Rights and Freedoms and then only if there has been an infringement of a Charter right (in sections 7-15). In this case, the rights are: section 8, the right to be secure against unreasonable search and seizure and section 9, the right not to be arbitrarily detained.  This again, requires the expertise of a lawyer who is familiar with the law of search and seizure and putting these applications before the court in a manner that will be successful.

Drinking and driving law is complex because, when the police do their job correctly, it is then, and only then, that the law allows for a reversal of the presumption of innocence.  However, the police must be careful and follow the procedure in the criminal code without error before a conviction can be registered against an accused person.  As can be seen, there are many opportunities for a skilled lawyer to assist an accused person in defending themselves.

For an assessment of your particular situation, contact the Law Office of Kalina & Tejpal at (416) 900-6999 or mail@lawyer4u.ca

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