Ask a DUI Lawyer
Can I Fight My Drunk Driving Charge?
See also: Can I fight My
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.
Toxicologists and other experts are invited to participate in our experts
database. Other lawyers (especially those outside Ontario) are welcome to
contribute to our legislation
database, and breath
instruments database. Technical discussion questions are proposed The
Naked Intoxilyzer 5000C site.
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.The lawyer may also suggest a
two-month retainer to obtain disclosure that only a lawyer can get.
- 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
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
- 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
- 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
- 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? Were the tests taken 15 minutes apart? What were the
qualifications of the breath tech? Was the machine an "approved
instrument"? (See section 258 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?
- 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
- 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 258 of the Criminal Code and
Hafermehl (Alberta), Rasmussen (B.C.), and Altseimer (Ontario) in the
respective Courts of Appeal.
- 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
- 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)
- 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
- 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
- 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)
- 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
Stuff: The Checklist (Bring this Questionnaire with You to Your Lawyer)
Stuff: The Worksheet (Exactly How Much You
Information About the Law
- Technical Discussion
Respecting Use of Approved Breath Instruments in Canada
- Licence Implications in Ontario
- Insurance Implications
in Ontario (see Rule 25 Facility Association)
- Search Caselaw and Articles
- Other Links and Resources