While Drinking and Driving Offences may seem simple, in fact, they involve a number of complex considerations, and there are far more ways to defend against Drinking and Driving charges than you may expect.
While it may be tempting to plead guilty to a Drinking and Driving charge in hopes of receiving a lower penalty and avoiding court proceedings, you should be aware that these offences carry Mandatory Minimum Penalties. Furthermore, your license will be suspended for one year and your insurance premiums will increase (please see below for further information on the penalties for Drinking and Driving).
If you are facing a Drinking and Driving charge, it is important to obtain solid legal advice so you can make the best decisions possible about how to proceed.
What are the Different Types of Drinking and Driving Offences?
There are three main types of Drinking and Driving Offences: Impaired Driving, Driving “Over 80” and Refusal/Failure to Provide a Breath or Blood Sample.
You can be charged with Impaired Driving (s. 253(1)(a) of the Criminal Code) if a police officer believes you are impaired by drugs and/or alcohol. This belief may be based upon the fact that there are drugs or alcohol in the car you are driving, or the officer may observe that your breath smells like alcohol or that you are unable to pass sobriety tests, such as walking a straight line.
The results of a breathalyzer or blood test are not required for you to be charged with Impaired Driving.
You can be charged with Driving “Over 80” (s. 253(1)(b) of the Criminal Code) if the results of a breathalyzer or blood test indicated you had over 80 milligrams of alcohol per 100 milliliters of blood in your body while you were operating a vehicle.
For “Over 80” it does not matter if you did not appear impaired at the time.
Refusal/Failure to Provide a Breath or Blood Sample
In order to be convicted of Refusal or Failure to Provide a Breath or Blood Sample (s. 254(5) of the Criminal Code), it must be proven that the police officer made a valid demand for a breath or blood sample; you failed or refused to provide the sample; and you intended to fail or refuse to produce the sample.
What is the Potential Penalty if you are Convicted of a Drinking and Driving Offence?
Mandatory Minimum Penalties
The mandatory minimum penalties for Impaired Driving, “Over 80” and Refusal/Failure to provide a Breath or Blood Sample are:
- first offence: $1000 fine,
- second offence: 30 days imprisonment and
- third offence: 120 days imprisonment.
Also, upon being convicted, your driver’s license will be suspended for one year. In Ontario, this suspension will remain in place until you have paid some fines, successfully completed an alcohol treatment program and had an interlock device installed in your car.
Impaired Driving, “Over 80” and Refusal/Failure to provide a Breath or Blood Sample can be treated as summary (less serious) or indictable (more serious) offences. The Crown Attorney will decide, depending on the circumstances of your case, whether to proceed summarily or on indictment.
If you are convicted of a summary offence, you could be imprisoned up to 18 months (in addition to the Mandatory Minimum Penalties listed above). If you are convicted of an indictable offence, you could be imprisoned for up to five years (in addition to the Mandatory Minimum Penalties listed above).
If your Drinking and Driving Offence resulted in an accident that caused bodily harm, you could be imprisoned for up to 10 years. If death resulted, you could be imprisoned for life.
How Can Duvadie Law Defend against a Drinking and Driving Charge?
In order for you to be convicted of Impaired Driving, it must be proven beyond a reasonable doubt that you were impaired by drugs or alcohol at the time in question. Generally the only evidence that exists in these cases is your testimony and the notes and testimony of the police officers.
DUVADIE Law will carefully examine police evidence, looking for ways to bring it into question during cross-examination. Inconsistencies in an officer’s account or between the accounts of different officers may be able to raise a reasonable doubt in the mind of the judge.
We would also consider whether you might be able to introduce credible evidence that could raise a reasonable doubt, such as evidence that you were not impaired or that you became “involuntarily impaired.” For example, a bartender may be able to testify that you were at the bar all evening before your arrest and had only drunk a small amount, or you may be able to raise evidence that you received drinks you did not know contained alcohol or that you took medication that affected you in an unpredictable way.
While it may be more difficult to raise a reasonable doubt in the face of scientific evidence, such as the results of a breathalyzer or blood test, it is important to realize that technology is not foolproof and that such tests are administered and their results are interpreted by human beings. It may be possible to question whether the technology was operating correctly, whether the test was administered properly and/or whether the results were interpreted correctly.
Furthermore, once police have made a demand for a breath or blood sample, the sample is required to be provided as soon as possible. If there is an unreasonable delay between the demand being made and you being provided the opportunity to provide a sample, it may be possible to argue that your Charter rights have been breached. If such an argument is successful, the court could rule that the results of the test cannot be used against you in court.
Refusal/Failure to Provide a Breath or Blood Sample
A Refusal/Failure to Provide a Breath or Blood Sample conviction requires that the officer made a valid demand for a sample. In order for the demand to be valid, the officer must have sufficient grounds to believe you were impaired. If the way the officer formed the belief that you were impaired is flawed, the demand is not valid and you cannot be convicted for refusing or failing to obey an invalid demand.
If you can convince the judge that you have a “reasonable excuse” for refusing or failing to provide the sample, you cannot be found guilty. Examples of reasonable excuses include: the existence of a language barrier so you did not understand what you were being asked to do; the existence of a medical condition that would make blowing into a device dangerous or impossible; or suffering a panic attack that made blowing into the device impossible.