By Layo Adeusi and Richard Aitken
A DUI conviction requires a multitude of elements all done correctly. There are many issues that occur in the course of being charged with a driving offence that may be potential defences. The law on impaired driving is strict, and the police and the Crown attorney must do everything properly and legally to obtain a conviction against the accused. A good defence lawyer will be able to work with you to determine which defences if any are available to you.
‘Bolus drinking’ or the ‘last drink’ defence is available where the accused has consumed a large amount of alcohol just before driving. When this occurs, alcohol is still being absorbed into the bloodstream, causing the BAC to show as higher than it actually is. Therefore their BAC is actually under 80mgs. If the officer has any reason to believe you have consumed alcohol within 15 minutes any roadside breath sample taken is not reliable.
Issues with the Breath Sample
A breath sample must be taken “as soon as practicable” means “within a reasonably prompt time” given the circumstances. Before you can give a proper breath sample to the police, the officer must make a proper breath demand. Under the Charter of Rights and Freedoms, the taking of a sample counts as a search, and if not properly conducted could amount to a breach of a section 8 right against unreasonable search and seizure.
In order to be reliable, the machine used to take the breath sample, most commonly the Intoxilyzer 8000c, must be in proper working order. It must be correctly operated by a qualified breath technician and calibrated within the last 14 days.
If it is shown that there were any issues with the taking of a proper breath sample, this is sufficient to mount a potential defence to any charges.
There are a number of common breaches that occur in the course of a DUI arrest. The most common being section 8, 9 and 10 of the Charter. A Charter challenge is a constitutional challenge as the Canadian Charter of Rights and Freedoms is part of Canada’s constitution. If evidence against an accused is obtained in a manner that violates a constitutional right, there may be an argument to exclude the evidence, resulting in an acquittal. Excluding the evidence of the BAC readings is, in most cases, this is the best way an individual charged with over 80 can potentially beat the charge. A 2018 case saw a woman acquitted because she was left in a locked cell for 89 minutes in order for an officer to complete paperwork and until she “calmed down.” This was a sufficient breach of her section 9 right against arbitrary detention and she was acquitted. The officer had a statutory obligation to release the accused as soon as practicable.
Rights to Counsel
If an accused can establish on a balance of probabilities that the police have breached, there’s a good change of excluding the breath readings, leading to an 08 acquittal. The following could be considered as breaches:
- the police did not inform the accused upon arrest or detention that they have a right to speak with a lawyer;
- the accused asks for a specific lawyer and the police do not do enough to put the accused in contact with that lawyer;
- the accused indicates that they want a lawyer, and the police assume it’s duty counsel that they accused wants to speak to, and do not provide a telephone book, a list of lawyers, or the ability to do a Google search.
These are but a few of potential defences available, depending on the circumstances.
In a DUI case there is a relatively long chain of events that must occur; anything not done properly mounts a potential defence. That’s why it is important to talk to a lawyer as soon as possible. At Aitken Robertson, our lawyers have extensive experience with DUI cases and work with you to mount a strong and rigorous defence. If you have been charged with a DUI in Bowmanville, Courtice, or Newcastle contact our office at 905-725-3564.