If you’ve found this website because police have just arrested you and brought you in to the station to provide breath samples, you’re in the right place. Know from the outset that it is always in your best interest to contact lawyer immediately to properly advise you based on the specifics of your case; however, some of this general information provided may assist you in having a very basic understanding about impaired driving, “DUI”, “over 80” and “refusal to provide sample” cases.
As you are likely well aware of now, being charged with a drinking and driving offence can feel overwhelming. Like many people charged with this offence, you have:
- Spent several hours in police custody;
- Had your vehicle impounded for seven days;
- Are now under a 90 day license suspension;
- Have paid towing and towing and impound fees;
- Feel upset with what happened, and perhaps the way you were treated by police; and,
- Are confused on what happens next in the criminal process and what happens at your upcoming court appearance;
Despite these feeling, the first thing you should know is that impaired driving charges happen to thousands of Canadians every year. In fact, it is the most common criminal offence in the country. You are not alone in this process, despite how isolated and embarrassed you may presently feel.
That said, drinking and driving is a serious criminal charge, and it is important to act quickly in order to ensure the best possible outcome for your case. With strict timelines surrounding eligibility for processes like Steam A and Steam B Reduced Suspension Programs in Ontario, time is of the essence to seek legal counsel who can advise you on what is the best approach for your particular case.
Secondly, despite these timelines, you should never plead guilty until you have obtained proper legal advice.
The Criminal Code imposes a mandatory minimum sentence for all first-time impaired driving offences, which is a $1,000.00 fine as well as a one-year driver’s license suspension followed by one year of only being allowed to drive in a vehicle equipped with an Interlock device.
However, and as mentioned above, if you plead guilty within 90 days of being charged, you may qualify for a reduced driver’s license suspension with the condition that you have an Interlock device installed in your vehicle for nine months following the mandatory three-month suspension. In some (but certainly not all) situations, this may be the most advantageous course of action.
The reason that accepting the Stream A or Stream B program is that in some cases, there is a very plausible and valid defence. It may be because of factual innocence, or due to constitutional violations that occurred, or abnormalities in the timing and manner in which police investigated you. In short, there are many ways a person is acquitted (or found “not guilty”) of impaired driving that a lawyer may be able to determine and advise you upon. As a result, there is no sense in pleading guilty before obtaining proper advice that could open up these options to you.
Also keep in mind that even if you enter an early plea, there is no guaranty that you will qualify for a reduced license suspension, and the conditions attached to a reduced suspension are onerous and expensive. In addition, a guilty plea will mean that you will have a criminal record, which could have significant repercussions for your employment and ability to travel.
The short answer is: no, absolutely not.
However, this is always within the context that it often takes over a month for you to have your first court appearance. Due to these tight timelines, there is very little time to act after your first court date while remaining eligible for the reduced license suspension. So, even though you do not need to decide on pleading guilty (or not) before the first appearance, the sooner you can speak to a lawyer and gain proper advice, the better position you are in making that decision. Further, you do not then have to worry about making the wrong decision or letting timelines pass if a lawyer has properly advised you in advance of your first appearance.
There are many things a lawyer does to assist a person charged with a criminal offence. Above all, your lawyer is trying to minimize the impact a criminal charge will have upon a person’s life as much as possible. Some of those efforts include:
- Meeting the client and discussing and advising upon many of the issues set out above;
- Reviewing the evidence (also known as “disclosure“) provided by the Crown Attorney’s office;
- Reviewing the evidence with the client and understanding the client’s version of events from the incident;
- Assessing legal arguments and possible defences to the charge(s);
- Making further requests for evidence that is not provided in the first instance;
- Attending Court appearances on behalf of the client;
- Engaging in discussions and negotiations with the assigned prosecutor for the file;
- Seeking to have the charge withdrawn, or reaching an acceptable resolution to the client without the need of trial;
- Attending more formal negotiations processes at “judicial pre-trials” before a judge;
- Trial preparation (including examinations, legal argument, and client preparation);
- Trial attendance (seeking to have charges dismissed or reduced by the judge); and,
- Sentencing submissions (if a person is found guilty or pleads guilty) to mitigate the sentence.
While the prospect of getting your license back sooner may be alluring, especially if you have to drive for work, it is important not to rush into a plea thinking that this is the best and quickest way to put these charges behind you and move on.
In fact, if you plead not guilty, it is possible that you will get your license back sooner than if you take an early plea, with the important caveat that you will face a longer license suspension if you are ultimately convicted. This is because, in most cases, you will get your license back while you await trial once the mandatory 90-day suspension is complete. If you are ultimately convicted, your license suspension will only begin on your conviction date, whereas if you are acquitted, you will not be subject to any further license suspension.
There may also be practical considerations that impact your decision regarding whether to enter a plea or go to trial, based on what is most important to you. For instance, some people prefer to keep their license in the short term while they make contingency arrangements for work and transportation during a future license suspension should they ultimately be convicted or decide to enter a plea at a later date.
Only experienced counsel with in-depth knowledge of drinking and driving matters can properly advise you on the course of action that is best suited to your specific needs.
People often assume that because they blew over, all hope is lost and there is nothing to be done. This is simply not true. There is always something that can done to mitigate, or at least try to mitigate the consequences from being charged.
For example, the Canadian Charter of Rights and Freedoms gives you important rights, and requires that police abide by strict rules and protocols in order to lawfully obtain breath samples from you. Failure to comply with these rules and protocols can result in a violation of your rights, which, in some cases, will lead to the breath test results being excluded from the evidence at trial, which can lead to an acquittal.
While exclusion of breath results is not a given, it happens far more often than you might think. A skilled lawyer with experience defending drinking and driving cases will know how to scrutinize the evidence and thoroughly cross-examine officers to reveal flaws in their investigation and give you the best chance of being acquitted.
Refusing to blow is a criminal offence under the Criminal Code that carries all the same consequences as blowing over the legal limit. That being said, if you have already been charged with refusing to provide a breath sample, you may still have a strong case.
Many of the same defences that apply to blowing over the legal limit may still be available to you. For instance, if police did not have a legally valid reason to pull you over and ask you to provide breath samples, or if they refused or failed to let you speak to a lawyer in private within a reasonable amount of time, a judge may find that you were justified in refusing to blow.
Police can also charge you with failing to provide a sample. This could happen in a situation where you make several attempts to provide a breath sample but the breathalyzer fails to register a proper reading. Possible defences to this charge include, among others: a technical problem with the machine, a medical condition that affects your breathing, and the officer not properly explaining what you were required to do in order to register a proper reading.
As with other drinking and driving charges, successfully defending against a charge of refusing or failing to provide a sample often comes down to very intricate and technical details. This is why it is so important to speak to a lawyer with experience in defending refusal to blow charges.
It is possible (but rare) to be charged with impaired driving even though you did not provide a breath sample. This is because the Criminal Code makes it an offence to drive while your ability to do so is impaired by any substance, regardless of whether it is alcohol or a drug. Even prescribed medication can result in a charge of impaired driving.
While the law only requires slight impairment in order to enter a conviction, proof of impairment beyond a reasonable doubt can be difficult for the Crown to establish. This is because the Crown must prove three things: 1) that you voluntarily consumed a substance, 2) that your ability to drive was impaired at least in part by that substance, and 3) that you knew or should have known that consuming that substance would impair your ability to drive.
In the absence of aberrant driving, the evidence tending to show that a person’s ability to drive was impaired can be quite sparse, and will often be based largely on the observations of officers whose testimony can be brought into question through effective cross-examination. Furthermore, while a judge can look at the results of co-ordination tests to infer that your ability to drive was impaired, if those tests were conducted at the roadside, before you were given a chance to speak to a lawyer, they will not be admissible at trial.
Again, a lawyer with experience in defending against these kinds of charges will be able to determine what evidence will be inadmissible at trial and asses the weight of the evidence that is admissible in order to provide you with the best possible advice.
Act quickly – Don’t wait until after your first court date to retain a lawyer. By talking to a lawyer as soon as possible, you are ensuring that you can make a properly informed decision about whether or not to opt for a reduced license suspension or take your case to trial. Furthermore, in certain circumstances, a lawyer might even be able to get your charges withdrawn altogether, or get the charge reduced to a non-criminal traffic offence that will not result in a criminal record.
You have rights – Just because you blew over or were charged with refusing to provide a sample does not mean that you have no defence. The Canadian Charter of Rights and Freedoms protects you against unlawful search and seizure and gives you the right to remain silent and retain and instruct counsel without delay. If police breach any of these rights, evidence against you can be deemed inadmissible at trial.
You have options – While it is normal to feel helpless during a criminal proceeding, it is important to remember that you have options. There are a number of important decisions you will make between the time you are charged and the time get a final ruling in your case. Retaining a lawyer with in-depth knowledge of drinking and driving cases who can advise you on the best course of action based on your specific needs will allow you to make properly informed decisions every step of the way.