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It would be most unwise for anyone in Ontario to enter a guilty plea or conduct a self-represented trial on an impaired driving, over 80, or refusal without a full consultation with a  DUI lawyer. A new Regulation has come into effect. Please consult a DUI lawyer to explore your options.

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Glossary:

 
  1. What are Canada's impaired driving offences under s. 253?

  2. What is "impaired" driving? 

  3. What is "over 80"?

  4. Can I visit Canada if I have a pending DUI or impaired driving conviction?

  5. What consequences or sentence will I receive for impaired driving?

  6. Should I plead guilty to impaired driving?

  7. What are the defences to impaired driving?

  8. How do I determine an impaired driving lawyer's track record of success before I pay a retainer?

  9. How do I determine if the lawyer is ready for the challenge of defending my impaired driving charge?

  10. What notes should I make immediately after my arrest for impaired driving?

  11. What items should I preserve after my arrest for impaired driving?

  12. Should I repair my car following an impaired driving accident?

  13. Should I make a statement to the insurance adjuster about my impaired driving accident?

  14. How will the Crown Prove "Driving" in an Impaired Driving or Over 80 trial?

  15. How will the Crown Prove "time of driving or care or control" in an Over 80 trial?

 

What are Canada's impaired driving offences under s. 253?

Canada has two main substantive DWI law criminal offences:

  1. impaired driving, impaired operation, or impaired care or control,
  2. over 80 operation or care or control

Section 253. Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

(b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

 

What is "impaired" driving? 

The Canadian impaired driving prohibited level of impairment may be slight. In R. v. Stellato, 78 C.C.C. (3d) 380, the issue was whether or not Canada's impaired driving offence required that the driver's conduct demonstrated a marked departure from that of a normal person. Chief Justice Lamer of the Supreme Court of Canada agreed with the views of Mr. Justice Labrosse for the Ontario Court of Appeal:

"I agree with Mitchell J.A. in Campbell that the Criminal Code does not prescribe any special test for determining impairment. In the words of Mitchell J.A., impairment is an issue of fact which the trial judge must decide on the evidence and the standard of proof is neither more nor less than that required for any other element of a criminal offence: courts should not apply tests which imply a tolerance that does not exist in law.

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out."

Impaired operation or impaired care or control in Canada includes operation or care or control of a motor vehicle, vessel, or aircraft while one's ability to operate is impaired by alcohol or a drug to any degree of impairment. This impaired driving offence is proven by evidence of bad driving and various indicia of impairment observed such as slurred speech, difficulty with standing walking turning, red glassy glossy bloodshot eyes, dilated pupils, odor odour of an alcoholic beverage, complexion flushed face, and performance on physical tests.

 

What is "over 80"?

It is also a criminal offence in Canada to drive having more than 80 milligrams of alcohol per 100 mls of blood whether one's ability to operate a motor vehicle is impaired or not. If a police officer has reasonable and probable grounds to believe that a person has committed an offence under s. 253 of the Criminal Code of Canada in the previous 3 hours, he or she may demand a breath sample in order to determine the person's Blood Alcohol Concentration (BAC). If the results of a breath test show a reading higher than 80 mg / 100 ml the individual may be charged with the offence of "over 80" or "excess alcohol" or what lawyers in the U.S. call a "per se offence". The offence is proven whether the person's ability to operate is impaired or not. This is a completely separate offence from impaired driving. The driver may appear sober but the over 80 offence is still made out as a result of the breath test.

The DWI offence of excess blood alcohol or over 80 is usually proven by breath tests that determine blood alcohol concentration using and approved instrument such as a Breathalyzer 900 900A or Intoxilyzer 5000C. Blood tests are used in impaired driving and over 80 cases where breath tests are not practical to provide evidence of blood alcohol concentration.

 

What are Canada's impaired driving offences under s. 253?

Canada has two main substantive DWI law criminal offences:

  1. impaired driving, impaired operation, or impaired care or control,
  2. over 80 operation or care or control

Section 253. Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

(b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

 

Can I visit Canada if I have a pending DUI or impaired driving conviction?

Both Canadian impaired driving laws are federal criminal law offences. The Crown in Canada can prosecute an impaired operation in either of two ways. Impaired driving and over 80 offences are hybrid offences in Canada. The Crown may prosecute an impaired driving related offence by indictment (roughly similar to a US felony impaired driving) or they may prosecute an impaired driving related offence by summary conviction (roughly similar to a US misdemeanor). The local Crown Attorney must elect whether to proceed with the impaired driving offence by indictment or by summary conviction. Until he or she elects, the impaired driving offence is deemed to be prosecuted by indictment. Most Canadian impaired driving offences are prosecuted by summary conviction.

If a US citizen or other non-Canadian citizen is convicted of an impaired driving related offence in the USA or an impaired driving offence in any country other than Canada, the impaired operation offender will be inadmissible to Canada on grounds of criminality, unless rehabilitated, because the impaired driving offence is deemed to be a Canadian impaired driving offence and all Canadian impaired driving offences are deemed indictable (similar to a US felony - see above) unless the Crown has elected to proceed with the impaired driving offence by summary conviction (which will never have happened because the impaired driving offense occurred outside Canada. The situation will be different if the impaired driving offence occurs in Canada and the Crown elects to proceed by summary conviction which they normally do.

 

What consequences or sentence will I receive for impaired driving?

The usual penalty for a first impaired driving offence in Canada is a fine. The minimum second impaired driving offence penalty is 30 days in jail. The minimum penalty for a third impaired driving is 120 days in jail. There is always an impaired driving prohibition and the local province will suspend an impaired driver's driver's licence.

 

Should I plead guilty to impaired driving?

If you are charged with impaired driving in Canada your situation is not hopeless. An experienced impaired driving lawyer or impaired driving attorney can challenge the Crown's case in many ways. Although a conviction for impaired driving may automatically result in a criminal conviction, a fine or jail, a prohibition on driving anywhere in Canada, a suspension of driver's licence by the Province, and increased insurance, a conviction for impaired driving is by no means certain. Busy police officers make mistakes on the road, at the police station, in the breath room, and at Court. It is the responsibility of your impaired driving lawyer to make sure that the Crown does not convict you without proving every element of the impaired driving offence beyond a reasonable doubt.

 

What are the defences to impaired driving?

The onus is always on the Crown to prove each element of its case beyond a reasonable doubt. An experienced impaired driving lawyer will carefully study the disclosure of the Crown brief, including police notes, statements of witnesses, breath room videos, and breath instrument printouts. 

The following are some of the issues that impaired driving lawyers litigate in Canada:

Reason for the Stop in Impaired Driving Law

Intent - Mens Rea in Impaired Driving Law

Necessity in Impaired Driving Law

Operating or Driving in Impaired Driving Law

Care or Control in Impaired Driving Law

Motor Vehicle in Impaired Driving Law

Included Offences in Impaired Driving Law

"Impaired" in Impaired Driving Law

Causation of Bodily Harm or Death in Impaired Driving Law

Use of Physical & ASD Tests Prior to RTC in Impaired Driving Law

Physical Tests in Impaired Driving Law

Coutts,Milne,Huff,White in Impaired Driving Law

"Counsel" in Impaired Driving Law

Right to Counsel in Impaired Driving Law

Intoxication During RTC in Impaired Driving Law

Interpreter During RTC in Impaired Driving Law

Privacy During RTC in Impaired Driving Law

Waiver of RTC in Impaired Driving Law

Counsel of Choice RTC in Impaired Driving Law

Information Component RTC in Impaired Driving Law

Right to Silence in Impaired Driving Law

Search or Seizure in Impaired Driving Law

Reasons Given for Arrest in Impaired Driving Law

Reasonable & Probable Grounds in Impaired Driving Law

Demand in Impaired Driving Law

"Forthwith" in Impaired Driving Law

Refusal to Comply with Demand in Impaired Driving Law

"Reasonable Excuse" in Impaired Driving Law

Approved Instrument in Impaired Driving Law

Notice re Certificate of Analysis in Impaired Driving Law

Certificate of Analysis in Impaired Driving Law

Evidence to the Contrary in Impaired Driving Law

Suitable Sample in Impaired Driving Law

Two Tests in Impaired Driving Law

Fifteen Minutes Apart in Impaired Driving Law

As Soon as Practicable in Impaired Driving Law

Two Hour Limit in Impaired Driving Law

Sentence - Impaired Minimum Penalty in Impaired Driving Law

Sentence - Impaired Curative Treatment in Impaired Driving Law

Subsequent Conviction in Impaired Driving Law

Disclosure in Impaired Driving Law

Unreasonable Delay in Impaired Driving Law

Rules and Forms in Impaired Driving Law

Constitutional Validity of Legislation in Impaired Driving Law

Exclusion of Evidence Remedy 24(2) in Impaired Driving Law

 

How do I determine an impaired driving lawyer's track record of success before I pay a retainer?

No impaired driving lawyer or impaired driving attorney can guarantee success. You may be found guilty and suffer the consequences. Sometimes people really are guilty of impaired driving and the system works the way it should. Sometimes there are no available defences. Your impaired driving lawyer can, however, make sure that you are not convicted without a fight. Even the most hopeless cases sometimes result in an acquittal. 

Some impaired driving lawyers can provide you with a list of examples of actual cases that they have litigated or negotiated to a conclusion. Obviously names and identifying data will have been removed to protect confidentiality. An impaired driving lawyer may be able to provide you with his or her case law precedents  reported in the law books. Ask if the impaired driving lawyer can provide such a list or look at the lawyer's web site. Look to see if the lawyer has experience raising and litigating creative defences based on solid research and trial skills. Does the lawyer know when to negotiate and when to fight? Does the lawyer have substantial experience in this special area of impaired driving? 

 

How do I determine if the lawyer is ready for the challenge of defending my impaired driving charge?

Ontario lawyers are governed by the Law Society of Upper Canada. The Law Society has strict rules governing the admission of any person to the practice of law in Ontario. Ontario lawyers are expected to engage in ongoing continuing education and research.

Many Ontario criminal lawyers are members of the Ontario Criminal Lawyers' Association. You may wish to find out if the lawyer is a member of the CLA or their local law association or criminal lawyers association.

Ask how many years the impaired driving lawyer has been in private criminal law practice. Has the Law Society of Upper Canada designated the lawyer as a specialist in a particular field? Please note that although the Law Society has a specialist designation for criminal law, they do not have a specific specialist designation for impaired driving law. You should find out if the lawyer is a leader among and well-connected with his or her colleagues for research purposes: international and local DUI listserv membership, involvement as a lecturer or seminar leader with peer continuing education, professional involvement within provincial and local law associations, professional reputation among toxicologists, experience as both Crown and defence, qualification as a Breath Alcohol Technician. Ask for and read the impaired driving lawyer's curriculum vitae.

 

What notes should I make immediately after my arrest for impaired driving?

Make notes of everything that happened related to your impaired driving charge. Write: "Private and Confidential for Use by My Impaired Driving Lawyer Only" at the top of the page. Give them directly to your impaired driving lawyer immediately and no one else. These notes could be dangerous to you if they fall into the hands of the police. You need notes of your drinking scenario, your interaction with the police at the car, and everything that happened at the police station. Use the following:

The Canadian Impaired Driving Checklist

The Canadian Drinking Driver's Worksheet

 

What items should I preserve after my arrest for impaired driving?

Retain and safeguard all receipts, bar bills, credit card slips, and documents from the restaurant or bar where you were drinking. Make inquiries and get answers if any of the receipts show errors in number of persons served or times. Purchase from the restaurant, friend, or family, a sample of each wine glass, pint glass, beer glass, mug, stein, shot glass, or other drinking cup. Research how the bar measures their liquor: do they use a shot glass, do they free pour, or do they use a machine to measure?

It is extremely important that you report to your lawyer ACCURATELY how much you had to drink, the exact alcohol percentage of each beverage, the size of the glass, bottle, or pitcher, and the times you started and stopped drinking. Any document or information which substantiates or supports that data should be retained (eg. a cell phone log or recollection of the sports event playing at the bar).   

 

Should I repair my car following an impaired driving accident?

It is very important that you speak to your lawyer before you commence any repairs or permit the write-off of your vehicle. In accident cases, particularly single vehicle accident cases, the operability or immovability of the motor vehicle may be a critical issue in determining a care or control issue.

Make detailed photos of your vehicle and the scene of the accident and share them only with your lawyer.

How to Take Photos for Use in Criminal Court in Canada

 

Should I make a statement to the insurance adjuster about my impaired driving accident?

Do not speak to an insurance adjuster or file a written statement with your insurance company until you have first received two different kinds of legal advice; first from a criminal law impaired driving lawyer, and second from an insurance law lawyer. Anything you say to the insurance people can and may be used against you in your criminal impaired driving trial. If you speak to your insurance company and admit that you were the driver this may help the Crown prove its case against you. 

 

How will the Crown Prove "Driving" in an Impaired Driving or Over 80 trial?

The Crown Attorney will call evidence from civilian witnesses or the police to prove you were driving a motor vehicle. Did someone see you operating the motor vehicle? Did the driver of the other car see you? Did a person on the street see you driving? Can they identify you? Did the police see you driving? Was someone else driving? Was someone else in the passenger seat who the Crown can subpoena to trial?

Did you admit to driving AFTER YOU SPOKE TO A LAWYER OR DUTY COUNSEL? If so the Crown can use what you said against you at trial. Did they make a video of your statement? Did they write it down? Did you give up your right to a lawyer? Once you spoke to a lawyer did you remain silent?

 

How will the Crown Prove "time of driving or care or control" in an Over 80 trial?

Can the Crown prove WHEN you were driving? If they can't prove WHEN, if there are no witnesses as to WHEN, or the witnesses are confused about WHEN, then the Crown may have a difficult time proving that your Blood Alcohol Concentration AT THE TIME OF DRIVING was over 80. Human bodies absorb and eliminate alcohol at different rates over time.

There is a presumption in section 258(1)(c) of the Criminal Code of Canada that if certain pre-requisites are established by the Crown then your BAC at the time of the lowest breath test equals your BAC at the time of driving. This presumption cannot be used, however, if the Crown can't prove the time of driving was within 2 hours of the first breath test. That forces the Crown to call an expert witness which is expensive. If they don't call the expert the Crown loses.  

 

|Stephen R. Biss, Barrister & Solicitor|Impaired Driving |DUI DWI Courthouses |Instruments|YOA YCJA Debate|Bills| CLA|Privacy

 

 

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.