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New Deal for Second-Time DUI Offenders

If you are convicted of a second DUI offence (over 80, impaired driving or refusing/failing to provide a breath sample) within a certain number of years, you face a mandatory minimum jail sentence of 30 days. (If your second offence is more than five years after your first one, the Crown might exercise its discretion and not file the notice that would require the court to impose this jail sentence and might instead seek a lesser jail sentence or possibly no jail sentence.) Besides, the likely jail sentence for a second offence, there is also a period of driver’s licence suspension followed by a period of having an Ignition Interlock restriction on your licence. The law has changed recently to allow a shorter driver’s licence suspension and interlock period for second-time offenders – but only if you plead guilty and are sentenced within 89 days of being charged.

Drinking and driving offences in Canada are governed by a confusing mixture of federal and provincial laws. The federal piece is in the application of the Criminal Code offences (e.g., over 80, impaired driving or refusing/failing to provide a breath sample) which carry their own penalties including minimum fines, periods of imprisonment and periods of prohibition from driving. On top of the Criminal Code penalties, each province can impose its own penalties and requirements. In Ontario the legislation that contains the provincial piece of the DUI offences picture, is the Highway Traffic Act. So while the Criminal Code provides, for example, that the period of driving prohibition after conviction for a second offence is not less than two years and not more than 10 years, plus the entire period to which the offender is sentenced to imprisonment, Ontario’s Highway Traffic Act imposes a longer period of driver’s licence suspension for a second offence conviction: three years full suspension, followed by three years of having an Ignition Interlock restriction on your licence.

Recently, the law with regards to second-time offenders changed and there is a possibility of shortening this period of three years of no driving followed by an additional three years of driving with the Ignition Interlock device (or not driving at all), to a nine-month period of no driving followed by an 18-month period of driving with the Interlock device, in addition to whatever period of the 90 days administrative driver’s licence suspension that was served prior to plea and sentencing. The Ministry of Transportation calls this program “Stream D.” The catch is that to get Stream D, you have to plead guilty and to be sentenced to the offence within 89 days of being charged. (Note that second-time offenders are not eligible at all if, within, the last 10 years, they were convicted of the offence of driving while disqualified.)

If instead of pleading guilty you choose to go to trial to try to beat the charges and avoid jail and the lengthy driving prohibition, but you lose at trial, you may face (besides the minimum jail sentence of 30 days) the longer period of driver’s licence suspension and Interlock restriction (three years plus three years). The government’s motivation in providing this plead early deal, is to reduce the use of government resources in terms of court appearances and time-consuming trials.

While the plead-early-to-get-a-shorter-licence-suspension deal may be an attractive option, there is the danger of some drivers who either are innocent or have a good defence for trial, choosing not to go to trial rather than risk the much longer licence suspension should they lose at trial. As well, 89 days may not give you enough time to obtain all the disclosure you need in order to decide whether or not you have a viable defence.

Regardless of the length of the driver’s licence suspension, the mandatory minimum jail sentence will still be imposed. The only way to avoid jail if the Crown files the notice requiring the court to impose the jail sentence, is to win at trial. The decision of whether to fight the charge in a trial or plead guilty to get Stream D may be a difficult one. If you are faced with this decision, you should consult with a lawyer who is knowledgeable about this highly technical area of law. The lawyers at Aitken Robertson have extensive experience in DUI law and can guide you in making the decision that is best for your particular circumstances. Contact Aitken Robertson for a free half-hour consultation. And remember, the Stream D deal is time sensitive so you need to act quickly in getting advice so that you can make an informed decision.

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