FAQs about Ontario Drinking and Driving Charges

Beating an “80 and Over” or impaired driving charge is not impossible, as evidenced by the existence of legal services like ours. These charges involve technicalities from both the prosecution and defence perspectives. When someone is charged with ““80 and Over”,” it’s crucial to recognize that valid bodily samples must be tested to determine alcohol concentration. However, before reaching this stage, police must adhere to the Charter of Rights and Freedoms, ensuring individuals aren’t subject to invasive state power. For example, it is not sufficient for a police officer to pull someone over and demand that a breath or blood sample be provided. Compliance with the Criminal Code’s procedures is also essential, but it’s not always straightforward, with errors or extenuating circumstances often affecting police actions.

Additionally, various defences can challenge breath/blood sample analyses, such as recent drinking impacting mouth alcohol delay or rapid alcohol consumption (a.k.a. bolus drinking), whereby an individual consumed alcohol in a post-offence scenario before sample-taking. These defences may seem rare but are viable under specific conditions. Moreover, certain non- alcoholic substances can skew breath analyses in certain situations.

In contrast, “impaired” charges rely more on subjective officer beliefs about an individual’s faculties. However, these beliefs must be grounded objectively. For example, in a recent case, an officer deemed a person impaired based on admitting to alcohol consumption, alcohol smell, unsteady balance, and red eyes. While this seemed valid, the officer overlooked alternative explanations.

It is possible that someone may have poured the alcoholic beverage into their mouth, swished it around and spit it out (like wine tasters do). It is also possible that someone may have just had one standard drink recently, which can account for the recent smell. These factors alone are not sufficient to classify someone as impaired. Admission and alcohol smell can indicate recent consumption, not impairment. Furthermore, external factors like icy terrain and late night can explain unsteady balance and red eyes.

Ultimately, the judge ruled the accused not guilty, highlighting the possibility of defeating such charges. Success in these cases often hinges on legal expertise bridging scientific and legal aspects of drinking and driving.

There is indeed truth in this statement. For a conviction of “80 and Over”, a breath or blood sample analysis is necessary. If you refuse to provide such a sample, it’s impossible to convict for this specific offence without a warrant for a blood draw, typically for medical reasons. However, impaired driving charges don’t rely on a specific alcohol concentration in the blood, making it possible to convict even without a sample.

Yet, refusing or failing to provide a sample can lead to a criminal charge for the same. A conviction for “Refuse/Fail to Provide a Breath Sample” carries similar penalties as those for “80 and Over” and “Impaired” offences. There are limited circumstances where refusal may be legally permissible, such as medical incapacity to provide a sample or an unlawful or invalid breath demand. However, these situations are rare, and it’s essential to consult a lawyer before undergoing such testing. Therefore, seeking legal advice upon arrest or before testing is crucial.

Simply put, the answer is no. When feasible, a police officer must collect a breath sample unless it harms the accused or isn’t feasible. Even if the accused offers a blood sample instead, hindering the collection of a breath sample still counts as refusal. This refusal could result in a charge of “Refuse/Fail to Provide a Breath Sample.”

Not quite. While the Criminal Code outlines minimum penalties for repeat offenders, other factors can influence whether someone will be sentenced to jail for a subsequent offence. One factor is the GAP principle, which allows the court to consider gaps in an accused person’s criminal history. Additionally, plea bargaining can play a role. Your lawyer can negotiate with the Crown to reach a resolution that doesn’t automatically result in jail time. The Crown also has discretion in deciding whether to file a “Notice of Increased Penalty” for previous drinking and driving convictions that occurred five or more years ago. However, it’s important to note that a conviction must occur before any prior record can impact someone facing a subsequent conviction.

Before 2008, there was some possibility of using the Carter defence, also known as the “two-beer defence.”

However, this defence has been significantly limited due to amendments in 2008 (Bill C-2). Now, to use the Carter defence, the accused not only has to prove they only consumed “two beers” but also demonstrate that the breathalyzer was malfunctioning and that this malfunction would have resulted in a blood alcohol concentration (BAC) below 80mg. Although the Supreme Court of Canada reviewed the constitutionality of these amendments, it did not overturn enough of the law to revive the Carter Defense.

Many people misunderstand this aspect of the law. When a provincial criminal court judge issues a driving prohibition order, it applies across all of Canada, not just within the province where it was issued. Even though the judge’s language may suggest otherwise, the Criminal Code specifies that the prohibition order has a nationwide effect.

However, each province has its own laws that further suspend the person’s driver’s license within that province. If the province has agreements with other non- Canadian jurisdictions, such as certain states in the United States, the suspension may also be effective there. To understand your rights, privileges, and limitations in these situations, it’s important to consult lawyers who are knowledgeable in this area of law, like the lawyers at Aitken Robertson.

The answer to this question is not straightforward. While a judge cannot automatically replace a drinking and driving charge with a “Careless Driving” charge (which falls under the provincial Highway Traffic Act), a provision in the Criminal Code allows for consideration of a guilty plea to careless driving instead of a criminal charge. However, this requires consent from the Crown. So, while a judge can’t make this substitution alone, they can influence the Crown to consider it. There is a directive from the Attorney General instructing the Crown’s Office not to resolve drinking and driving cases with a careless driving charge unless there are significant obstacles to obtaining a conviction for the original charges.

When you’re involved in a car accident, as defined in the Highway Traffic Act, the Act requires you to answer questions from the police during their investigation. However, this requirement raises concerns about whether these compelled statements violate your rights under the Charter of Rights and Freedoms, specifically section 7, which grants the right not to self-incriminate. This is often referred to as the “right to silence.” In Canada, the burden of proving guilt lies with the Crown, and individuals are not required to help the police build their case. Ontario has established that compelled statements cannot be used as evidence in a criminal trial, provided they were indeed compelled.

Additionally, the Ontario Court of Appeal has ruled that police cannot even rely on compelled statements to justify an arrest. It’s important to note that not every statement given to the police is considered compelled. If you’re unsure about your rights in this situation, it’s best to seek advice from a lawyer at Aitken Robertson.

Legally speaking, you’re not required to have a lawyer, just like you’re not required to hire an electrician to wire your home if you’re confident in your skills. However, if you’re not a trained electrician, there’s a good chance something could go wrong with the wiring, and your house could burn down. Similarly, if you plead guilty to a charge without fully understanding your options, reversing that decision later can be incredibly challenging.

Plus, navigating the legal system without proper knowledge can be risky. Online research might not cover all the complexities of your case, potentially leading you to overlook crucial details that could prove your innocence or make it tough for the prosecution. That’s why it’s crucial to seek the advice of a lawyer. While they may not know how to wire a house, they know how to analyze legal situations. Consulting with a lawyer could mean the difference between your freedom and a conviction.

For instance, in a recent case, one of our clients wanted to plead guilty because they believed they had no defence. However, upon thorough review, our lawyers found errors in the evidence, resulting in the withdrawal of the charges. If the client hadn’t sought our advice and proceeded with the guilty plea, they could have faced lifelong consequences. It’s always wise to seek legal counsel before making any decisions. At Aitken Robertson, we offer a free 30-minute consultation to help you understand your options.

Most breath-testing devices use infrared spectroscopy to determine the amount of alcohol in your breath. They pass infrared energy through your breath sample, and based on how that energy changes, they can estimate the alcohol concentration.

One common device used at roadside stops is the Draeger Aloctest 6810, which shows pass/fail/warn or red/yellow/green lights. Failing this test just means you need more tests at the station; it’s not proof of guilt. It’s essential to have someone who knows these devices well check if they were working right after your arrest.

At police stations, they use instruments like the Breathalyzer and Intoxilyzer to measure alcohol levels in your breath. The law cares about your Blood Alcohol Concentration (BAC), not your Breath Alcohol Content (BrAC). These machines aren’t perfect. Many judges are concerned that relying too much on them is like having trials decided by machines. Issues like calibration errors, interfering substances, and physiological differences can affect their accuracy.

While newer models like the Intoxilyzer 8000C are touted as improvements, they may have their flaws—for instance, the 8000C measures fewer infrared frequencies than its predecessor, potentially leading to more mistakes. Despite the hype around new machines, they’re not foolproof. It’s crucial to have someone like Aitken Robertson look into your case to see if there were any problems with the device.

No, if you’re caught driving with a blood alcohol concentration of over 80 milligrams of alcohol per 100 millilitres of blood, the police can impound your vehicle for seven days. The same applies if you fail or refuse a breath test when an officer asks.

After seven days, it is up to the owner when full towing and storage costs are paid. Even if you’re later found not guilty of impaired driving or exceeding the legal alcohol limit, the registered owner is still responsible for these costs.

It’s not probable, except if you’re under the Youth Criminal Justice Act (YCJA). To qualify for Legal Aid, you need to meet two criteria: financial need and a potential for jail time. Typically, the Crown doesn’t seek jail time for adults facing their first impaired driving or “80 and Over” charge, so they may not meet the requirements for Legal Aid.

However, if someone aged 17 or younger is charged with impaired driving or exceeding the legal alcohol limit, their case falls under the YCJA in youth court. Even if they don’t meet the usual criteria for Legal Aid, a judge can still grant them a Legal Aid Certificate under Section 25 if the seriousness of the charges warrants it.

On an early plea of guilty to an over 80, impaired driving or refuse sample charge, you may be eligible to get your licence back in as little as 3 months if you install an ignition interlock device. Even if you go to a trial and lose you may be eligible to be back driving after 6 months with an interlock device. But what if you don’t want to or cannot install an interlock device? The answer is that you spend a much longer time before you can drive. On a first offence you will be unable to drive for a full year. During that year you must complete the Back on Track program, and pay all fines and reinstatement fees. At the one year point you should be eligible to get your licence back. BUT, there will be a one year term to have interlock installed. While you do not have to install it, you cannot drive a vehicle that does not have it. This means that your time not driving gets extended to 2 years in reality.

It is important that you get your licence back as soon as possible though because if you never get it back then the 1 year interlock term never starts. So if you drag your feet and don’t take Back on Track for 3 years then get your licence back, the interlock term will start then and extend your time not driving to 4 years!

The same thing is true for second offences where there is a mandatory 3 year no driving and 3 year interlock term. If you wait longer to get your licence back then the 3 years with the interlock term will start later. For third offences you can never drive without an interlock installed ever again.

Because of all of this, it is best to take the steps as fast as you can even if you do not want to install an interlock device so that the clock starts running.

If you don’t drive, you have a long path in front of you before you can drive in Ontario. If you live in the USA, other than New York or Michigan, then you do not have to worry. If you live in a different province in Canada, or in Michigan or New York, the penalties vary from location to location. Each jurisdiction has its own rules. For example, in Alberta even after a trial you may be able to get your licence after as little as 3 months. The same case in Quebec may lead to a much longer loss of licence. For this reason it is important that you review your case with a lawyer who understands the intricacies of these laws so that you are properly advised when choosing whether to plead guilty or have a trial.

It depends. If there is an accident, you need to.

Your policy will have rules about what information you are mandated to provide. You must not lie to your insurance company or mislead them.

However, in non accident situations you may not need to reveal convictions if your insurer does not request such information from you.