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Over the Limit! Charged with “Over 80” in Peterborough: Defences

Drinking and driving charges are one of the most frequent offences in court cases. It can come with some serious consequences like the loss of your licence for a period of time, fines and the installation of an Interlock device. But just because you have been charged doesn’t mean that it’s over and you will have a criminal record. There are many defences that may be applicable.

Recent/ Bolus drinking

Roadside Breathalyzer tests may show higher readings if you have had a drink within 15 minutes of the test being administered. These results show higher because of residual alcohol in the mouth. Because the alcohol is still being absorbed, the blood alcohol concentration (BAC) is actually lower than the readings may project. If this is the case, may be a potential defence if your BAC at the time of driving was actually below the legal limit. It is important to remember when your last drink was as this can have an impact your BAC at the time of driving.

Breath tests must be done as soon as practicable

The courts make an important distinction between “as soon as practicable” and “as soon as possible.” Samples must be taken within a reasonable time period in the circumstances. Because of the absorption rate of alcohol, tests not done within a reasonable time are not accurate. This may help towards your defence.

Right to Counsel

During the course of your arrest, police must be careful to ensure that your Charter rights are protected. If not, this mounts another possible defence. Police officers have a duty to ensure your section 10 b) Charter right to counsel is protected. Everyone has the right to counsel of your choice “to retain and instruct counsel without delay and to be informed of that right.” Usually this first comes in the form of speaking to duty counsel at the police station, although you have the right to speak to any lawyer you can contact within a reasonable period of time. Officers have a duty to make sure you are satisfied with the advice you receive or this constitutes a violation.

Unreasonable Delay

Section 11(b) of the Charter states that you have a right to a trial within a reasonable amount of time. The case of Jordan gave us a reasonable time of 18 months. If unreasonable delay extends past 18 months then this may be a defence to all charges. It is important to note that not all delays count toward the 18 month total, only delays for which the Crown Attorney, or Court are responsible will make up this total.

If charged with a DUI, do not hesitate to contact our Peterborough office as soon as possible. Our lawyers know the technical intricacies of the laws surrounding drinking and driving. What you think is a minor detail may amount to a solid legal defence.

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