Pointts, The Traffic Ticket Specialists

Impaired Charges

POINTTS agents do not handle any criminal code matters.

The Law Society keeps a register of specialists in various matters including criminal driving matters. Please consult your local telephone directory for the Law Society telephone number.

Some POINTTS On Drinking and Driving Laws

There appears to be a prevailing urban myth that once you are charged with a drinking and driving offence, a conviction is sure to follow. On the contrary, there are probably more defences available for a drinking and driving allegation than there are for most other criminal charges.

The most commonly laid drinking and driving charge in Canada is usually referred to as 'Over 80'. This is an allegation by the police that the person charged was operating their motor vehicle while having more than the legal limit of alcohol in their blood. In Canada, the legal limit is 80 milligrams of alcohol per 100 millilitres of blood. The most common defense to this charge is to challenge the accuracy of the breath testing instrument that measured the blood alcohol concentration of the driver. This defense is commonly referred to as "evidence to the contrary". While it would be helpful to one's defense to discover an error in the preparation or operation of the breath testing instrument, this is not a pre-condition to advancing this defense. In fact, the law in Canada is that an individual is never 'at the mercy' of the breath testing instrument. If a person charged with Over 80 offers testimony in court regarding what he or she drank prior to driving, a judge can consider that evidence and any other evidence presented by the defense such as eye witnesses who can confirm what the individual drank while in their presence, bar receipts, etc. Further evidence is then tendered, usually from an expert witness, that the individual would have been within the legal limit at the time of driving assuming his or her version of alcohol consumption is accurate. If the judge finds the testimony of the defense witnesses to be credible, the judge will usually dismiss the charge even though the defence evidence would invariably be in conflict with the results of the breath testing instrument. This is an acknowledgment by the courts that no breath testing instrument is infallible and like any criminal charge, the obligation rests with the prosecution to prove their case to the exclusion of any reasonable doubt.

In addition to the evidence to the contrary defense, the technical nature of an Over 80 charge lends itself well to a host of technical defenses. For example, time is always of the essence in an Over 80 allegation. The Criminal Code provides for strict time requirements that the police must follow in a drinking and driving investigation. If there are delays prior to the breath tests that are either unexplained or unjustified in all the circumstances of the case, the charge may be dismissed for that reason alone. Moreover, constitutional issues are often front and centre in a drinking and driving trial. Thus, if an individual wasn't given a fair opportunity to consult with a lawyer prior to taking the breath tests or if the police cannot justify the arrest of the individual based on "reasonable and probable grounds" (that is, proper legal cause for believing that the person arrested was either impaired by alcohol or above the legal limit), the judge will often exclude the evidence of the breath readings from the trial.

Two other commonly laid drinking and driving offences are Impaired Driving and Refusing to Provide Breath Samples. Impaired Driving is an allegation by a police officer that a driver's ability to operate a motor vehicle has been impaired by the consumption of alcohol or drugs. One need not be over the legal limit of alcohol to be charged with impaired driving and, indeed, if the allegation is impairment by drug, a driver could be charged with Impaired Driving while having no alcohol in his system. Proof of impairment can take many forms but is most commonly proven by the evidence of both police and civilian witnesses, as the case may be, who relate their observations of the driver through their testimony at trial. The most common observations heard at Impaired Driving trials include erratic driving, poor balance, slurred speech, glossy and bloodshot eyes and a smell of alcohol on one's breath. The most common defense to such an allegation is either to challenge the reliability of the witnesses' testimony (for example, was the lighting in the area where the witness saw the driver conducive to making reliable observations) or to provide explanations for the observations of the witnesses that are consistent with something other than impairment by alcohol or drug (for example, did the driver have a medical condition that would affect his balance or speech). This offence is decidedly subjective in nature as it is based primarily on the opinion of the witnesses who testify at trial. Effective cross-examination can often raise a doubt in the mind of a trial judge as to whether the observations of the witnesses are sufficient to meet the very high standard of proof required to convict.

It is an offense for a driver to refuse to comply with a lawful demand by a police officer to provide breath samples into a breath testing instrument. This charge includes both an outright refusal by the driver to blow or an allegation by the police that the driver was not putting in an honest effort to provide a proper breath sample (the latter being a far more common fact situation than the former.) Medical defenses are often advanced at a 'Refuse' trial. For example, respiratory ailments will make it impossible for some drivers to comply with a police officer's demand to provide breath samples. This type of defense will usually necessitate bringing a doctor to court to testify as to the medical condition of the person charged. Technical defenses are very commonly argued for this type of charge as well. For example, unless a police officer has the proper grounds in law to make a breathalyzer demand there is no obligation on the driver to comply.

If you are convicted of a drinking and driving offence you can expect the following consequences:

• You will have a criminal record;
• Your right to operate a motor vehicle anywhere in Canada will be prohibited for at least 1 year. (There are no exceptions during this prohibition period. There is no provision in the Criminal Code that allows the judge to permit you to drive for limited purposes such as work);
• In Ontario, if you have at least 2 previous drinking and driving convictions since 1993, you could lose your Ontario drivers licence for life;
• Your insurance rates will increase dramatically when you do get your driving privileges back;
• You will have to pay a fine or, if you have one or more previous convictions for drinking and driving or if the facts of the case are particularly serious, you may have to serve a period of time in jail;

In Ontario, you will have to take a driving course, at your expense, before your license will be reinstated.

There are other criminal driving offences that may not involve alcohol consumption but which involve consequences upon conviction that are as serious as the consequences following a drinking and driving conviction. These offences include failing to stop after a motor vehicle accident, dangerous driving, driving while disqualified, criminal negligence, and the newly enacted police chase provisions of the Criminal Code of Canada. A brief discussion of each of these charges will follow:

1. Fail to Stop after Accident: The Criminal Code provides that any driver involved in an accident with another vehicle must stop his vehicle, provide assistance to anyone requiring assistance and leave his name and address. Once those 3 requirements have been met, the Criminal Code does not compel you to remain at the scene of an accident. Even if the driver does leave the scene of an accident without having met one or all of the requirements already noted, it does not become a criminal offence unless the driver leaving the scene of the accident did so to avoid civil or criminal liability. Thus, for example, if a driver leaves the scene of an accident because he is being threatened by the other driver this would constitute a defense to the charge.



2. Dangerous Driving: This is an allegation that the driver operated his motor vehicle in a manner that was dangerous to the public. The "public" can include passengers in the motor vehicle driven by the person charged with this offence. The Ontario Court of Appeal has held that to constitute dangerous driving, the driving in question must constitute a "marked departure from the norm". Like the impaired driving charge, this charge is very subjective in nature. Bad driving occurs on our highways every day. Whether any particular episode of driving is sufficient to meet the criminal standard for dangerous driving (as opposed to a lesser traffic offence for example, careless driving) will be left to the judgement of the Justice hearing the evidence at trial.



3. Driving while Disqualified: Once a judge has prohibited you from operating a motor vehicle, it is a criminal offence to operate a motor vehicle during the period of prohibition stipulated by the judge. If convicted of this offence, a jail sentence is the norm rather than the exception. In order to prove a drive while disqualified charge, the Prosecution will typically have to rely on documentary evidence that establishes the disqualified status of the driver on the date he was charged. The most common defense to this charge is to challenge the admissibility of these documents on technical or procedural grounds.



4. Criminal Negligence: Someone could be charged with this offense for engaging in a host of activities including the operation of a motor vehicle. Criminal Negligence is defined as the wanton or reckless disregard for the lives or safety of other persons. This offense will always involve either bodily harm or death to a person other than the one charged. The alleged driving in a criminal negligence allegation will usually be more egregious than a Dangerous Driving allegation and the penalties upon conviction will usually be more severe . Someone convicted of this offense will typically face the prospect of a lengthy jail sentence and a substantial driving prohibition.



5. Failing to Stop for Police: Parliament has enacted new provisions making it a criminal offense to engage the police in a pursuit. Formerly, this type of activity was only governed by the Highway Traffic Act. Of course, the Prosecution would be required to prove that the driver knew he was being pursued by the police before it could secure a conviction.

While there is no doubt that some fact situations present better defenses in law than others, it is always prudent to have a lawyer review the case in order to make that assessment. Pleading guilty without at least determining whether or not there is a viable defense to the charge would be unwise because of the severe penalties that follow conviction.