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Ask a DUI Lawyer

Can I Fight My Drunk Driving Charge?

See also: Can I fight My Criminal Charge?


Impaired Driving Lawyer- What Are My Chances?

The following are issues which should be considered by anyone charged with a drunk driving offence in Canada. Speak to your lawyer and ask him or her about these issues.  Lawyers and Judges are invited to use and add to our Case Briefs database of impaired driving law at www.casebriefs.net

Technical discussion questions are proposed at The Naked Intoxilyzer 5000C site and the

  www.impaired-driving.com Blog .

Defence of drunk driving charges requires that the lawyer and potential client meet in person for a detailed preliminary consultation for at least one-hour to discuss the client's recollection of exactly what he or she ate and drank, what the police saw, did, and said, what opportunity to speak to counsel was given at the station, the breath instrument operator's procedure, and the printouts from the breath instrument. The potential client should obtain a paid legal opinion of the merits of any defence before getting an estimate or hiring the lawyer. Sometimes the lawyer will recommend that you obtain primary disclosure of the police notes and breath room video (if any) prior to the lawyer providing a detailed opinion on the merits of a defence and giving you an estimate of the cost.

Sometimes a client and their existing lawyer will ask Stephen Biss to consult and conduct a detailed review of the disclosure and breath room video to identify hidden issues that can be successfully litigated. I do this quite often for colleagues who have taken my continuing education programmes on DUI defence and analysis of disclosure. I can only perform this service if the request comes from the lawyer, not the client. I do not ever want to interfere with an individual's relationship with their own lawyer. 

Are you charged with "operating

or "care or control"? Did the police see you driving or sitting in your vehicle behind the wheel? (Read Toews and Ford in the Supreme Court of Canada). Was there a witness? If you made an oral, written, or video statement admitting to driving, did the police follow all the rules in reading your rights?

Are you charged with "impaired" operation or care or control

(Read Stellato in the Ontario Court of Appeal)

Did the police have a valid reason for stopping you, eg. a R.I.D.E. program

(Read Ladouceur, Hufsky, Wilson, and Dedman in the Supreme Court of Canada)

Did the police conduct physical tests at the scene and more importantly 

can the Crown use the results against you in Court

(Read Saunders, Milne, Coutts in the Ontario Court of Appeal) 

Did the police use a roadside screening device? Did the officer make a formal demand? Did another police officer have to bring it to the scene? (Read Grant in the Supreme Court of Canada) Was it an "approved screening device"? Was it properly calibrated? Was it used by the same officer who made the demand? Was there alcohol in your mouth from a recently consumed drink? (See Bernshaw in the Supreme Court of Canada)  

Did the police speak to you in a language you understood?  

(see Vanstaceghem in the Ontario Court of Appeal) 

Did they read you your rights and tell you about 24 hour free advice from duty counsel? (See Brydges in the Supreme Court of Canada) 

Were you too intoxicated to understand?  

(See Clarkson and Mohl in the Supreme Court of Canada) 

Is English your second language?  

Did the police make a formal demand that you provide a breath sample at the police station into an Approved Instrument? Did the police have reasonable and probable grounds for the demand? What does your disclosure show about the police officer's notes regarding the indicia of impairment?  (See also Bernshaw in the Supreme Court of Canada)  

Were you given a real opportunity at the police station to consult with a lawyer in private

Was the first police station breath test conducted within 2 hours of driving or care or control? Do the police know the exact time of  driving or accident? 

Note: The "test within 2 hours" defence has been eliminated by new legislation but your lawyer may still be able to use this information in another way.

Were the tests taken 15 minutes apart? What were the qualifications of the breath tech? Was the machine an "approved instrument"? (See section 320 of the Criminal Code). 

Has the Crown provided you with disclosure of calibration checks, diagnostic checks, and ADAMS or COBRA data? Was the instrument functioning properly?

Note: Much of "disclosure" has been eliminated by new legislation but your lawyer may still be able to use or obtain this information in another way.

Have you and your lawyer established whether the breath instrument readings on calibration checks matched the standard alcohol solution target value? Was the simulator which held the standard alcohol solution maintaining a constant temperature of 34 C during the calibration checks? Should a representative sample of the lot of standard alcohol solution be independently tested? 

Is the simulator thermometer reliable and did the breath tech examine it during the calibration checks?

Did the police waste time prior to the breath tests taking detours along the road, doing unnecessary paperwork, waiting for the breath tech, going to the wrong police station, fixing the breath machine? Were the tests taken "as soon as practicable"?  

See section 320 of the Criminal Code and Hafermehl (Alberta), Rasmussen (B.C.), and Altseimer (Ontario) in the respective Courts of Appeal.

Note: The "as soon as practicable" defence has been eliminated by new legislation but your lawyer may still be able to use this information in another way.

Were the police using radios or cell phones in the breath room area? Were your cell phone or bluetooth in a seized property bag on or in a desk in the breath room?

Are the results of the breath test totally erroneous? Based on what you know you drank should you have blown a lot less? 

Do you have "evidence to the contrary"? Has your lawyer provided you with an estimate of your Blood Alcohol Concentration based on your recollection of what you drank? 

Perhaps a toxicologist should be retained by your lawyer to calculate your correct blood alcohol concentration. 

(See also Carter in the Ontario Court of Appeal and St. Pierre in the Supreme Court of Canada) 

Note: The "Carter" defence has been eliminated by new legislation but your lawyer may still be able to use this information in another way.

Do you work with any liquids, gels, creams, or other substances that may be interferents to the breath instrument's analysis? Do you suffer from any stomach ailments that could cause mouth alcohol effect? Are you diabetic and does your body produce significant acetone?

Note: The "instrument malfunction" defence has been eliminated by new legislation but your lawyer may still be able to use this information in another way.

Should you serve the Crown with a Notice of Application for a remedy excluding evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms? 

Has the Crown provided you with complete disclosure of their case including documents and materials helpful to you? Has any evidence been destroyed? (See Stinchcombe in the Supreme Court of Canada)

Note: Obtaining disclosure of the context (reliability) of breath tests appears to have been eliminated by new legislation but your lawyer may still be able to use this information in another way.

Will the Crown be calling the breath tech to give evidence or will the Crown file the "Certificate of Analysis"?

Has the matter come on for trial within a reasonable time or have there been unacceptable delays due to Crown requested adjournments, paperwork foul-ups, or systemic problems in the Courts? (See Askov and Morin in the Supreme Court of Canada) 

If convicted, is this a first offence, a second offence, or a third? Did the police serve you with "Notice of Increased Penalty" and did they follow all the rules for service? What's your previous record? Will the Crown negotiate to treat a third as a second or a second as a first?

You need to consult with a lawyer to go over your case in detail. You will need to pay for a detailed opinion as to whether or not you have a good defence. That takes time and money.

What's My Track Record?


How I Can Help


Practical Stuff: The Checklist (Bring this Questionnaire with You to Your Lawyer)


Practical Stuff: The Worksheet (Exactly How Much You Drank)





List of Young Offenders Debates



Copyright 2018 Stephen Biss



Stephen R. Biss, Barrister & Solicitor

470 Hensall Circle, Suite 303
Mississauga, Ontario
L5A 3V4

905-273-3322  or 1-877-273-3322


Advertisement. Any legal opinions expressed at this site relate to the Province of Ontario, Canada only. If you reside or carry on business in any other jurisdiction please consult a lawyer, solicitor, or attorney in your own jurisdiction. WARNING: All information contained herein is provided for the purpose of providing basic information only and should not be construed as formal legal advice. The author disclaims any and all liability resulting from reliance upon such information. You are strongly encouraged to seek and retain professional legal advice before relying upon any of the information contained herein.