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City: Muskoka, Ontario
Year: 2017
Our Client: Mr. K.
Charge(s): Impaired, Over 80
Lawyer: Richard J. Aitken, B.A., J.D.
Richard Aitken - Criminal Lawyer

“My experience with Aitken Robertson, exceeded all my expectations. After being charged with impaired driving and over 80mg. The team was able to settle my case with a careless driving charge. This saved my career and marriage. A Criminal charge would have prevented travel also. Aitken Robertson Also set up a monthly payment I could afford while we waited for the case to settle. I trust that you’ll be in good hands with Aitken Robertson.”  – Mr. K.

Case Study: Impaired, Over 80

Our client, a young man, aged 34 found himself in difficulties with the police, and retained me to assist with his file. He worked as a HVAC technician and needed to be able to drive the company vehicles. Mr. K. was a married man, and the charges were creating a great strain on him and on his family. He lived in St. Catharines, Ontario and had been visiting Muskoka.

The Allegations

Sgt. C. received a report of a pickup truck parked at a gas station, when he approached, the driver began to pull away but stopped when Sgt. C. got his attention. Sgt. C. smelled the odour of alcohol and asked the driver (Mr. N.) if he’d been drinking. Mr. N. said that he had not.

Const. L then arrived and Sgt. C requested a roadside screening test. Mr. N. made 2 tries and then a third test which showed a “Fail” result. Const. L. then placed him under arrest.

The Charges

Mr. K. was facing a Huntsville charge of impaired driving, and operate a motor vehicle with more than 80 mg of alcohol in 100 ml of blood.

The Allegations

According to the Crown disclosure, the police were notified of an accident in which a car had gone off the road. Only one vehicle was involved and no one was seriously injured, although the vehicle sustained damage. The police found two males and one female walking away from the accident, and one of the males (Mr. K.) admitted he was the driver of the vehicle and was charged with Over 80.

Crown Position

The Crown Attorney’s position is that they wanted Mr. K to plead guilty to impaired driving, for a 1200 fine, a 15% victim fine surcharge, and a driving prohibition lasting 12 months. This was an unacceptable position to the defence.


Our goal was to convince the Crown that their case was difficult, and the most sensible solution would be for the Crown Attorney to accept a plea to careless driving. For our client this would be a non criminal disposition of the charge, and he would be able to keep his driver’s licence.

The main problem for the defence is that the readings were quite high, in the 160s, some twice the legal limit. As well there was an accident, and there were other people in the vehicle when the accident occurred. These were aggravating circumstances.

The problems for the Crown Attorney and the police is that no independent witnesses nor the police had seen Mr. K actually operate the motor vehicle or even be behind the steering wheel in the normal driver’s position, that might prove care and control of the motor vehicle. However, it was alleged that Mr. K. had made some statements to the police which tended to show in fact that he was the driver.


In my discussions with the Crown Attorney’s office, I pointed out the problems the Crown might have in proving beyond a reasonable doubt that in fact Mr. K. was the operator of the motor vehicle. Over the passage of time, and extensive negotiations, an acceptable resolution was reached in which Mr. K. pled guilty to the non criminal charge of careless driving. By way of penalty there was a $1000.00 fine +25% surcharge, 1 year probation, with additional term not to drive any vehicle without interlock device unless in accordance with work. All of the criminal charges were withdrawn.

This case demonstrated that in many accident cases, the accused is in a better situation than if stopped at a RIDE stop. Often in accident cases the Crown attorney has difficulty establishing who the driver was and the time of the accident. In a RIDE stop, the police can exactly point to the time of the driving and who the driver was.

Mr. K. was very appreciative of the outcome of his case.

Please Note: Past results not predictive of future results.

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