Minnesota-dui-attorneys

Definitions from various jurisdictions contributed by law students:

A.L.E.R.T.: A roadside tester screening device. An approved screening device Model J3A formerly used in Ontario.

absorption: Ethanol, drinking alcohol, disappears in the mouth, the stomach and the small intestine and enters the blood. Graph of blood alcohol concentration over time as a 155 lb. male consumes 4 341 ml. beers with a full stomach. Food has slowed this absorption down. Without food the absorption would be quicker. Notice the time 1900 to 2200. At first there is absorption of alcohol through the mouth, stomach, and intestines and into the blood. Almost immediately elimination begins as the liver starts to metabolize the alcohol. The blood alcohol concentration rises during this absorptrion phase because absorption greatly exceeds elimination. After that there is a plateau where the BAC stays fairly constant or bounces up and down a bit. Plateau absorption rate equals elimination rate approximately but stomach flap sometimes opens to let contents into intestine. Some people may plateau for 2 hours. The elimination phase starts about 2300. elimination would have continued through 0100 and beyond at a rate of about 10 to 20 mg/100mls per hour. Back calculations work ONLY in the elimination phase, if at all. Don't use this information to calculate your own BAC, that could be dangerous. The BAC equivalent of each bottle of beer varies from individual to individual and varies with weight, gender, and body shape.

accuracy: Accuracy has to do with whether or not a breath test instrument's analysis of blood alcohol concentration is the same as or similar to the subject's true blood alcohol concentration. If a person's true blood alcohol concentration is 100 mg/100mLs then an accurate breath test instrument is going to provide an analysis of near 100 mg/100mLs. Precision has to do with whether the breath test instrument will give the same or similar result multiple times for the same subject, assuming that the person's blood alcohol concentration isn't changing over time (which it probably is). See the Target Analogy.

acetone: An interferent that sometimes looks to a breath instrument like ethanol during breath tests. When an IR breath test instrument analyzes substances in the sample chamber, IR light is absorbed by acetone at some of the same wavelengths as ethanol. If acetone is present, the instrument which uses only two or three filters (one for each wavelength) may analyze acetone as if it were ethanol. Such instruments are generally designed to notice, if acetone is present, that the ratio of absorption of IR at two different wavelengths isn't the ratio that it is supposed to be, triggering an error message. The instruments, however, are preset to not notice interferents below a certain threshold. The problem becomes much more difficult if there is a mix of ethanol, acetone, and other stuff. There are also problems if the instrument attempts to subtract the acetone reading from the combined acetone and ethanol reading. Acetone is found in many products such as nail polish remover.

admissability of certificate: No synopsis available yet. Please add.

Admissibility of Physicals and ASD Prior to Rights: Assume that a police officer uses a p.b.t., screening device, or physical tests at roadside for the purpose of determining whether or not he or she has reasonable grounds to arrest a person for drunk driving. If the tests are compelled or if the driver willingly complies without first being warned that these tests will be used against his or her interests or without first being given an opportunity to consult with legal counsel, is it fair that these tests be used against the driver when it comes time for Court. The officer must make quick and important decisions at roadside as to whether or not to arrest. Those decisions need to be based on quickly obtained information. But should this urgent information ultimately be used against the driver at the criminal trial. Does compelling an individual to help the police violate basic rights?

aggravating circumstances: The circumstances of the offence that make this particular case worse than an ordinary example of this offence. In impaired driving cases, high BAC readings, bad driving, high speeds, danger to the public, child in the car, an accident or near accident, injuries to a victim, or some combination of these may be aggravating circumstances.

alcohol: Ethanol (drinking alcohol)is produced from sugar by fermentation of grains. However, there are lots of other alcohols - molecules with a hydroxyl OH attachment. Other non-drinking alcohols include methyl alcohol (methanol) and isopropanol.

approved container: A method of retaining a portion of a breath sample for later independent testing.

Approved Instrument: An instrument that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood.

approved screening device: roadside tester, PBT, P.B.T., minimal intrusion on driver, rough idea of blood alcohol concentration, pass, warn, fail. In order to minimize police interference with motorists, police will sometimes use a mobile roadside device at R.I.D.E. or other holiday programs to stop motorists and perform a quick check of blood alcohol concentration through the use of a roadside tester.

arbitrary detention: The detention of a person despite a lack of evidence or likelihood that they have committed a crime.

As Soon as Practicable: Breath tests are obviously never seized at exactly the same point in time as the moment when the alleged drunk driving occurred. The analysis of breath at the time of the breath tests will almost always have a different result than the subject's true blood alcohol concentration at the time of driving, because of the phenomena of absorption, distribution, and elimination of alcohol in the human body over time. Different jurisdictions use different methods to solve this problem. How does your jurisdiction deal with this problem? Some jurisdictions require the breath tests to be taken "as soon as practicable".

BAC: Blood Alcohol Concentration, alcohol concentration in the bloodstream. Sometimes expressed as milligrams of alcohol per 100 millilitres of blood (mgs/100mLs), millimoles per litre (mmol/L), or grams of alcohol per 100 mls of blood (grams of alcohol per 210 litres deep lung air). Not the same thing as Breath Alcohol Concentration (B_rAC).

blood demand: In some jurisdictions a police officer may demand a sample of a driver's blood for blood tests for the presence and concentration of alcohol or a drug.

blood tests: In some jurisdictions police may make a blood demand for a sample of a person's blood in order to determine the concentration of alcohol or a drug in a driver's body.

bolus drinking: Administering a very large quantity of alcohol quickly through the mouth sometimes using a funnel. The concentration of alcohol in the blood will rise very significantly but absorption may be delayed depending on food, stomach health, and type of beverage. Very dangerous. It may be an explanation in some unique cases as to why breath instrument readings exceed true BAC at time of driving.

calibration of approved screening device: Manufacturers, entities responsible for setting national or state or provincial breath and blood standards, and individual police services appear to have different standards or no standards for frequency of calibration checks and if necessary re-calibration of screening devices aka roadside testers. It seems unfair that drivers should be subjected to testing if the device is not known to be reliable. Perhaps police, lawyers, and the Courts should be consulting the manufacturer's operating manual (R. v. Bernshaw)and the relevant national or provincial standards before relying on the accuracy of these devices. Assuming we are speaking about fuel cell devices, their calibration is very different from IR devices.

Care or Control: charge of or power to direct or command, Some use of the car or its fittings and equipment, or some course of conduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous

Carter defence: Sometimes a person accused of a per se over 80 offence tells their lawyer what they drank and when and the lawyer hires a toxicologist to calculate the person's estimated blood alcohol concentration at the time of driving. If the evidence of the driver is believed and the toxicologist's expert evidence is accepted and that evidence contradicts the breath instrument reading, in some juridictions there may be a defence. In Canada this is called a Carter defence or "evidence to the contrary".

Causes Bodily Harm: induce, make, be cause of, part and parcel, in order to enable, to continue or facilitate, injured as the result of an accident

cell phone interference: There is considerable debate about this subject. Some breath instruments have radio frequency interference detectors that automatically shut down the test sequence and print an error card if RFI interference is detected. Some experts take the position that cell phone interference can cause elevated BAC readings on breath test instruments. They suggest that if a cell phone is transmitting (a call is in progress) and it is placed near the instrument there will be strange results. Other experts insist that this is not the case. There is a need for study of this issue. Police radios and other radio transmitters are also alleged to impact on the accuracy of breath tests.

certificate of analyst, certificate of analysis: The Standard Alcohol Solution (SAS) that is used as an external standard to run a calibration check of a breath instrument is contained in a simulator. Unless that SAS is reliable and accurate the external standard is useless. Prior to use, a batch of SAS is tested in a lab using a gas chromatograph to determine that it is a proper standard alcohol solution. The analyst who tests and approves the SAS as suitable for use will complete a certificate that he or she has analyzed a representative sample of the lot and certifies it in a document called a certificate of analysis.

Certificate of Qualified Technician: Instead of calling viva voce evidence from a qualified breath tech who conducted a breath test using a breath instrument and having him or her prove that the machine was working properly, it may be appropriate for the breath tech to prepare a certificate that is filed in Court as a shortcut for the prosecutor. This is different from the Certificate of Analysis of a standard alcohol solution.

chemical tests: If you have been arrested for DUI, DWI, OUI, OWI or a related charge, you may be required to provide a sample of your blood, breath or urine for the purpose of testing your blood alcohol concentration. The concept of chemical tests includes blood, breath and urine. See the "implied consent" law that may apply in your state.

Constitutional Validity of Legislation: Sometimes laws made by a parliament or a legislature may contradict the supreme law of a country, its constitution. A constitutional democratic government gets its authority and power to make law from its constitution. Laws made exceeding the jurisdiction given to that government without the authority of the constitution may be meaningless if a Court in that country makes that determination. When a law is unconstitutional the Courts may say that the law is meaningless or that it should be "read down" so as not to be beyond the jurisdiction of the government. Courts have a duty to construe and apply laws to specific fact situations. Sometime they have to construe a particular law as meaning nothing and sometimes they have to construe the law as meaning something different from the letter of the law passed by Parliament. A law is ultra vires if it is beyond the jurisdiction of the legislature.

conviction: There is a big difference between being investigated for a crime and being convicted of a crime. Just because an allegation has been made or a person has been arrested by police doesn't mean that they are guilty of a crime. In countries where there is a presumption of innocence, you aren't gulity until you've been proven guilty by a prosecutor after evidence has been submitted and accepted by a judge. People often are too quick to assume that a charge laid means that a conviction will automatically follow. A "conviction" refers to a formal finding by a judge that a person is guilty of the offence charged and that the judge has decided to enter a conviction.

Counsel: barrister or group of barristers, lawyer or attorney, advocate. Interesting legal issues arise where an individual seeks legal advice from a friend or relative who is a police officer or wishes to retain a paralegal.

Counsel of Choice: If an individual is arrested or detained they may have the right to consult with a lawyer or attorney. That right may be part of constitutional law, judge made law, or a particular statute. The right to the consultation may be long or short, in person or over the telephone, under the control of the police or in privacy, all depending on the jurisdiction and the context. The person charged may or may not have the right to choose a particular lawyer or attorney to consult. "Counsel of choice" refers to the right to consult with the particular lawyer or attorney that the detainee chooses, not simply one chosen by the police or supplied by the government.

Coutts_Milne_Huff_White: Three important Canadian cases having to do with what evidentiary use can be made of statements, screening device tests, and physical tests obtained by police during the period prior to right to counsel. There may be a difference between evidence gathered for the purpose of reasonable and probable grounds for arrest and demand as opposed to proving guilt at trial.

criminal negligence: When an individual has the mens rea (knowledge) that a crime has been, is or will be committed. This includes being willfully blind or careless.

criminal procedure: Laws related to procedure in the criminal court system. Not substantive criminal law related to criminal offences or evidence law related to evidence rules at trial. Criminal procedure law governs such things as warrants, arrest, bail hearings, notices to parents for juveniles, preliminary inquiries, informations and indictments, Crown and defence elections, mode of trial, jury selection, jury trial procedure, procedure at trial, and sentencing procedure.

D.U.I.: Driving Under the Inflence

Demand: Before a police officer has the right to seize a sample of breath or blood there may be conditions precedent. In some jurisdictions, the seizure will not be lawful unless the police officer makes a formal Demand for such a sample upon reasonable grounds for such a formal Demand.

demerit points: some jurisdictions attach a number of demerit points for a particular offence, licence is suspended or licensee is brought in for an interview after a number of points are accumulated

designation: A Canadian accused can appoint counsel to represent the accused in any proceedings by filing a designation with the court.

diabetic: DKA; Ketoacidosis; by-products of fat breakdown are ketones: fruity smell on breath, acetone, fasting, not eaten food all day. Persons who suffer from diabetes may be producing acetone on their breath. Acetone may mimic ethanol drinking-alcohol on breath instrument readings and cause inflated readings. Acetone detect and subtract circuits may not be adequate to detect or remove the acetone portion of the reading.

Disclosure: The accused should be afforded the opportunity to see the case for the prosecution, the evidence that the State or Crown will use against him or her long before the trial begins. At the very least the defence should receive discovery of a copy of the prosecutor's brief of police officers' and witnesses' statements before plea.

disqualification: No synopsis available yet. Please add.

distinction between impaired driving and over 80: some jurisdictions have separate offences for operation of a motor vehicle while ability to do so impaired and the separate per se offence of having a blood alcohol concentration above 0, 50, 80, or 100 mgs/100mLs

double jeopardy: A defense in which an individual cannot be charged and tried twice based on the same set of facts and events.

double punishment: No synopsis available yet. Please add.

drug: A chemical substance that affects the function of living things. Drugs can be used to treat illness, or modify a chemical process in the body for a specific purpose. Drugs can also impair one's ability to operate a motor vehicle. Some drugs work together with alcohol to exacerbate impairment.

duplicity: No synopsis available yet. Please add.

elimination: Ethanol is absorbed in the mouth, the stomach, and the small intestine. Rate of absorption depends on many factors. Ethanol is distributed throughout the body. Ethanol is metabolized by the liver and eliminated at a rate of 10 to 20 mg/100Mls/hr.

employee education: Your company will need to educate employees as to their unique blood alcohol concentration effects of each standard drink as well including both absorption and elimination. Employees need to learn how to carefully monitor and document their drinking prior to driving. A business may lose a valuable employee to detention, jail, injury, or embarrassment if its management does not take steps to educate employees about alcohol absorption, distribution, elimination and the effects of alcohol at different stages.

evidence tending to show: No synopsis available yet. Please add.

Evidence to the Contrary: In some jurisdictions the evidence and presumptions of accuracy and identity of a breath instrument can be contradicted by evidence of the accused as to alcohol consumed and the expert evidence of a toxicologist. In Canada this is often called a Carter defence.

Exclusion of Evidence Remedy 24(2): In Canada, if police or the Crown violate rights under the Canadian Charter of Rights and Freedoms, the Court may make an order excluding evidence of confessions, breath tests or other evidence that would otherwise be admissible. This is the Canadian equivalent of "suppression".

exemption for employment purposes: In some jurisdictions it may be possible to have an exception to a licence suspension to permit driving for employment purposes only. Other jurisdictions prohibit all driving during suspension. See also licence for work

expert affidavits: A sworn statement of fact acknowledged by an expert in their field. A taker of oaths such as a notary public must witness the affidavit.

failure to stop: This occurs when an individual is involved in an driving related accident, and they fail to stop to exchange information or to check if other were harmed.

Fifteen Minutes Apart: There is some evidentiary advantage to obtaining two breath analysis results obtained from two different samples separated in time. If the results are in good agreement (eg. within 20 mg/100 mLs of each other truncated) then it is safer to assume that the breath sampling procedure followed has not resulted in an erroneous result caused by, for example, the presence of mouth alcohol. In Canada the protocol is at least 15 minutes apart but other protocols are used elsewhere.

fifteen minutes apart: -

first offence: On your first offence of impaired driving, driving with a blood alcohol content over 80, or refusing to give a breath or blood sample there may be minimum penalties. The minimum penalties that a judge must impose in Canada for a first offence would be a fine of at least $600 and prohibition from driving anywhere in Canada for at least one year. The existence of a pardon may cause a second or third offence to be treated as a first in Canada. A second offence which occurred at a point in time before the actual conviction for the first may also be treated in Canada as a first offence for Criminal Code purposes.

Forthwith: A term found which can be found in contracts, court orders, and statutes, which means as soon as it can be reasonably done. It also implies immediacy, with no excuses for delay. Breath test demands in Canada must be made forthwith or as soon as practicable.

Gas chromatography: a method to check the concentration of a sample of standard alcohol solution (SAS)

headspace: headspace: the vapour portion above the liquid in a simulator containing standard alcohol solution (SAS) if the headspace has not yet warmed up to the same temperature as the liquid in the simulator, low caliberation checks may result.

Ignition interlock: a driver of a vehicle equipped with this device will not be able to start the car or continue to drive it if he or she does not blow into the machine, a failure may result in lights flashing and horn blowing.

immoblized vehicle : No synopsis available yet. Please add.

Impaired: There is a difference between a person being "impaired" by alcohol and a persons's "ability to operate a motor vehicle" being impaired by alcohol. In Canada see the R. v. Stellato case for a definition of "impairment".

impound vehicle: Some jurisdictions permit the police to seize the vehicle used in the DUI or the drive while suspended offence. The vehicle may be towed to a police or private pound and held pending further investigation or payment of a fee. Some jurisdictions allow the police to hold the vehicle for a certain number of days.

Included Offences: A person tried for an offence such as break, enter, and theft may be found not guilty of the offence charged of break, enter and theft but guilty of the lesser and included offence of theft. In Canada, Crowns frequently take the position that impaired care or control of a motor vehicle is an included offence to the charge of impaired driving. In other words, if the person cannot be proven to be driving they can still be convicted of care or control. This is not the case in some other jurisdictions.

indicia of impairment: Reasonable grounds to suspect that an individual is impaired (i.e. smell of alcohol).

Information Component Right to Counsel: Right to Counsel. Police in Canada are obliged to comply with both the informational component of the Charter section 10b right to counsel as well as provide the opportunity to retain and instruct counsel without delay. The informational component includes the obligation under R. v. Brydges to tell the detainee about the existence of and how to access 24 hour emergency duty counsel.

instrument: a tool,a machine used to accomplish something, a breath instrument Some people get very upset when you call a breath instrument a "machine". In the field of forensic breath testing the term implies precision, accuracy, and following protocol.

insurance implications: A DUI allegation or conviction may be very costly for many years with a very large surcharge imposed by your insurance company. Insurance companies may also raise rates as a result of administrative licence suspensions, accidents, and plea bargains to lesser offences such as careless driving.

Intent - Mens Rea: Mens Rea refers to the mental state (guilty mind) that must be an adjunct to a prohibited act before it can be considered a crime. Different type of offences require different mental states. For example, was there intention to commit theft or was there some knowledge that the property possessed is stolen. Generally an essential ingredient to every criminal offence, but not necessarily applicable to minor provincial offences. A guilty act requires a guilty mind: Actus non facit reum, nisi mens sit rea

interferent: Also known as "interferent bias" Evidentiary breath instruments are designed to alert the qualified technician if an interferent, such as acetone, is detected on the breath of the test subject. The ethanol molecule's IR signature has similarities at certain wavelengths to acetone, methanol, and isopropanol. This means that if a breath instrument is not designed to alert the qualified technician as to the presence of an interferent, then acetone, methanol, isopropanol (if present on the breath or in the room) could falsely elevate the breath readings. Evaluation of evidentiary breath instruments requires that particular substances that are produced endogenously and could be present in human breath, be tested to determine if they could create such an interferent bias. Non-evidentiary screening devices usually do not contain the hardware or software necessay to alert for or subtract for other alcohols such as isopropanol. The presence of a substance such as isopropanol can damage a fuel cell sensor. The Effect of Volatile Substances on the Intoxilyzer 5000C Breathtesting Instrument Isopropanol Interference with Breath Alcohol Analysis: A Case Report

internal standards: Internal standards within the breath testing instrument are different from an external standard alcohol solution in a separate simulator instrument. If a diagnostic test of the breath instrument using an internal standard indicates a fail the instrument is supposed to shut down automatically and indicate an error message.

Interpreter During Right to Counsel: In English Canada a person, whose first language is not English, has the right to an interpreter during the informational component of their right to counsel and in actually making use of that right. In practice the 24 hour duty counsel system in Canada makes extensive use of interpreters speaking many many languages. The same rule should apply to persons who are hearing impaired. The same rule applies in French Canada. There is a big difference between a police officer interpreter who understands rudimentary sign language and a proper interpreter.

intoxicated drivers: Intoxication is being drunk, being excited or elated beyond self-control by an intoxicating substance, such as ethanol. What proportion of drivers are intoxicated during the day? What proportion of drivers are intoxicated during the evening? What proportion of drivers are intoxicated in the early morning hours?

Intoxication During Right to Counsel: Is it a defence to a per se over 80 offence to say that you were too drunk to understand your right to counsel and so you couldn't understand the informational component of your right to counsel, which means you didn't waive your right to counsel prior to the breath tests, which means you weren't properly afforded your right to counsel and therefore the taking of breath tests by police is illegal - all because you were too drunk? Needless to say Courts don't particularly like this argument in drunk driving cases.

involuntary impairment: No synopsis available yet. Please add.

IR: Infrared Spectrometry, measure blood alcohol concentration by analyzing a breath sample in a chamber through which IR light is passed. Different molecules (eg. ethanol) absorb IR light to different extents at different wavelengths. By measuring how much IR light is absorbed at a wavelength relevant to ethanol one can determine the concentration of ethanol in the sample compared to no ethanol. However, any other substance that absorbs IR at the same frequency will mess up that calculation - we call those interferents. The best breath machines are ones that are specific (specificity) to ethanol.

isopropanol: rubbing alcohol, an interferent that sometimes looks to an IR breath instrument just like ethanol. Used by and inhaled by people in the printing industry. Hopefully the breath test instrument will flag the isopropanol contaminated breath test with an error message. However, combinations of ethanol and isopropanol are more difficult to detect.

jury: A group of lay ordinary persons who try issues of fact. The answer to the question of whether a trial will be by judge alone or judge and jury depends on whether or not a jury trial is available according to the law in the particular state or province. If a jury trial is available, one needs to consider the functions of the judge and the jury. Generally the judge makes determinations of law and the jury makes determinations of fact.

juvenile convictions: What impact do juvenile convictions or youth court findings of guilt have on sentencing for an adult offence? Do minimum sentences apply?

keys in the ignition: See also care or control. If a drinking driver has stopped driving, parked the car, and gone to sleep behind the wheel is he or she still "drinking and drivin". Different jurisdictions deal with this problem in different ways. On the other hand some people use a motor vehicle or a motorhome as a house. Can you be convicted if you enter or decide to use the motor vehicle as a house rather than as a vehicle? It depends on your jurisdiction. Speak to a lawyer in your own community. Keys in the ignition msay or may not be one of the indicia that you intended to operate the vehicle in which you were sleeping.

last chance: How many times should a person get to try to blow into a breath machine? Should there be a warning before a refusal charge is laid?

last drink defence: Also known as rising alcohol defence or bolus drinking defence. If absorption is still greater than elimination because alcohol consumption was recent and perhaps bolus, then BAC at time of driving may be less than that at time of breath test at police station.

licence for work: Is there any way I can keep my driver's licence if I am convicted of DUI? Some jurisdictions have automaqtic licence suspensions that operate upon conviction and are beyond the control of the Judge or the prosecutor. Some jurisdictions have minimum punishments such that a Judge has no option but to impose the mandatory minimum prohibition order.

limitation period: The maximum length of time after an offence during which a criminal charge can be laid. A period of time specified in a statute within which a criminal proceeding must be commenced. A statute of limitations.

lowest reading: See 258(1)(c) in Canada.

maximum penalty: The maximum penalty varies.

medical practitioner: An individual who is licensed and/or registered to practice medicine.

mens rea: Intent in criminal law. As a general rule, you can't be guilty of a criminal offence if you inadvertently did something against the law. Crimes require a deliberate act or recklessness. There are lots of exceptions to this general rule.

mmol: 1 millimole equals 4.6 mg/100mls or .0046

Motor Vehicle: A self-propelled wheeled conveyance, such as a car or truck, that does not travel on rails

mouth alcohol: Also known as "mouth alcohol bias" Ethanol remaining in the mouth following a recent drink (last 15 minutes) or as the result of vomitting, GERD, burping, mouthwash may exaggerate breath test readings dramatically. Evidentiary breath instruments are usually designed so as to alert the qualified technician that mouth alcohol or stomach alcohol has been detected rather than deep lung air alcohol. This is accomplished through a slope detection algorithm in the software which looks for a peak in the readings coming in near the beginning of the breath sample with a rapid drop off followed by a combined effect of deep lung air alcohol and the mouth. The instrument shuts down and prints a warning often stated as "Invalid Sample". Unfortunately, although the software usually does what it is supposed to do (i.e. watch for the peak and report), mouth alcohol bias can still occur due to the combined analysis of a small amount of mouth alcohol combined with a fairly low true blood alcohol concentration. It is very possible for an individual with a true BAC of 30 mg/100mLs to blow a 120 mg/100mLs reading and for a person with a true BAC of 115 mg/100mLs to blow over 300 mg/100mLs. A person whose true BAC is just under the legal limit (eg. 78 mg/100mLs) could blow just over the legal limit (eg. 87 mg/100mLs). In some jurisdictions there is a requirement for two tests. If those tests are well spread out in time (eg. 15 minutes apart) and the two tests are in good agreement with each other (eg. within 20 mg/100mls of each other truncated) then mouth alcohol bias is less likely. Another best practice to reduce the possibility of mouth alcohol bias is a deprivation period (observation period) of 15 to 20 minutes before the breath tests wherein the qualified technician keeps the subject under continuous observation for that period to ensure that he or she does not vommit, consume alcohol, gum or breath strips, belch or burp. Non-evidentiary breath instruments used as screening devices generally do not have mouth alcohol slope detectors.

mouth alcohol delay: See Bernshaw in Canada. A police officer should not immediately administer a roadside screening device test if he or she has information that there may be a source of mouth alcohol (eg. a very recent drink of alcohol, recent mouthwash, vomit), rather the screening device test should be delayed about 15 or 20 minutes to make sure that there is no alcohol in the mouth that would cause mouth alcohol bias.

multiple convictions: No synopsis available yet. Please add.

Necessity: In evidence law, "necessity" is sometimes used as one of the criteria to make a principled determination of an exception to the hearsay rule. In criminal law, "necessity" is sometimes argued as a defence to a criminal offence. A person who has a sick child, for example, MAY be justified in exceeding the speed limit on the way to the hospital. An unsuccessful example of this argument can be found in R. v. Tjeltveit, 1994 CanLII 5078 (SK Q.B.): "In essence his argument is that as he was not in the driver's seat the basis upon which he was found to be in care and control was the fact of his having the motor running and the heater on. As the reason for having the heater on was the cold weather condition which prevented his leaving the vehicle, it was thus a necessity and, therefore, he ought not to have been convicted."

no contest: No contest means that the defendant neither admits nor disputes the charge. A plea without actually admitting guilt.

not later than two hours: In Canada see section 258(1)(c).

Notice re Certificate of Analysis: If the prosecutor proceeds by certificate evidence rather than viva voce evidence of the analysis, should the accused have advance notice?

O.W.I.: Operating while intoxicated.

observation period: Mouth alcohol distorts breath readings. The officer should observe you for awhile to make sure you don't consume more alcohol or belch so that alcohol ends up in your mouth.

onus of proof: The onus of proof represents the responsibility of the crown or defense to prove either the innocence or guilt of the accused. In Canadian Criminal law, the onus is on the Crown Attorney to prove the guilt of the accused.

operates: drives

Operating or Driving: In most jurisdictions it is a criminal offence to drive or operate a motor vehicle while intoxicated. If the motor vehicle is not moving is it being driven or operated? Is it in gear, are the lights on, is it on the road? What if you are sleeping? Where is your head? Where are your feet? Are you in the driver's seat. Different jurisdictions deal with these issues in different way. Some people live in cars. If you live in a car and you sleep in the driver's seat are you operating it? See also care or control.

operation while disqualified: No synopsis available yet. Please add.

pardon: A period of time after your conviction you may be able to apply for a pardon. A pardon granted by a government authority takes away some but not all of the legal consequences of a criminal conviction.

pas: passive alcohol sensor. Hand held battery operated, flashligh, held close to driver's breath, no blowing neccessary

peace officer: No synopsis available yet. Please add.

penalties: Sentences and sentencing law varies from jurisdiction to jurisdiction.

Physical Tests: These tests are designed to assess your physical and mental alertness. An officer may require you to perform a series of tests if he/she suspects you to be intoxicated while operationing a motor vehicle. Some of the test may include: Walking a straight line, walking frontwards or backwards, Standing on one leg etc.

police report: synopsis of events prepared by the investigating officer and included in the prosecutor's brief

post-driving alcohol consumption : No synopsis available yet. Please add.

presumpton of alcohol concentration: No synopsis available yet. Please add.

privacy: Separate the concepts: 1. An individual's right to privacy. 2. Privacy during consultation with counsel.

Privacy During Right to Counsel: An individual who is consulting with a lawyer prior to interrogation or in preparation for Court should be afforded the right to speak to that lawyer in private.

private: No synopsis available yet. Please add.

prohibition: Separate the concepts: 1. prohibition order by a judge respecting driving or operating (which is different from suspension of a driver's licence) 2. the equitable remedy of prohibition - a superior court prohibits an inferior court or tribunal from exceeding its jurisdiction

public documents: Information in the public domain i.e reported decision, press statements, etc. Documents made public have minimal security which allows for them to be approved for public use.

qualified technician: No synopsis available yet. Please add.

R.I.D.E.: Reduce Impaired Driving in Etobicoke. Reduce Impaired Driving Everywhere. Roadside (sometimes holiday) spot checks looking for drunk drivers.

random stop: Do police officers have the right to randomly stop you without giving you a justifed reason for the stop?

re judicata: No synopsis available yet. Please add.

Reason for the Stop: Do the police have a good reason to stop the motor vehicle?

Reasonable and Probable Grounds: A police officer must have reasonable and probable grounds prior to searching an individual. Therefore, an officer must suspect that an individual has committed a crime before they search them.

Reasonable Excuse: Without reasonable excuse, fails or reuses to provide. See section 254

reasonably suspects: See section 254 in Canada re a police officer's power to demand a roadside screening sample of breath.

reasonble time to comply: No synopsis available yet. Please add.

Reasons Given for Arrest: Should a police officer tell you what he or she is arresting you for?

reciprocal agreements: Many states and provinces have agreements with other states and provinces that cause driver's licence suspensions for a driver in his or her home state or province as the result of a conviction for an offence in another state or province.

Refusal to Comply with Demand:

refuses: No synopsis available yet. Please add.

regain driving privileges: No synopsis available yet. Please add.

relaying or refiling charges : No synopsis available yet. Please add.

repudiation of resolution agreement: If the prosecutor and defence reach an agreement respecting resolution of a criminal charge should it be open to the prosecutor to renege or repudiate that agreement if a later prosecutor thinks it is a bad deal, contrary to policy, or not in the public interest. Should the Crown be able to unilaterally end a plea agreement?

retain: hire a lawyer, obtain the services of an attorney, engage

right: something you own or have that the state can't ignore, protected by the law, you can give it up but probably shouldn't, police must respect it and allow for it, you should assert it, it belongs to a person because they are a person, other persons or the state need to respect it, it arises because of a law or a constitution or because you are a person

Right to Counsel: right to have a lawyer's advice before doing something particularly respecting a court case

Right to Silence: legal protection given to people undergoing police interrogation during questioning. In some countries the right to silence can also be applied to trial proceedings.

rising alcohol: The time of driving is always different from the time when the breath, blood, or urine test is taken. Blood Alcohol Concentration is almost always different at the time of driving than it is at the time the evidentiary tests are undertaken. During the elimination phase BAC is dropping over time because the body is eliminating alcohol at a rate between 10 mg/100mLs/hr and 20 mg/100mLs/hr. Therefore usually it is safe to assume that the BAC at time of tests by the police is lower than at the time of driving. However, if alcohol was consumed very shortly before driving, depending on the type of alcohol, the stomach, and food, absorption of all the alcohol may be delayed (the absorption phase) and then BAC rises AFTER the driving resulting in inflated results in the police tests if the police tests are taken later in the absorption phase, during the plateau phase, or at the beginning of the elimination phase.

Rules and Forms:

samples neccessary to enable proper analysis: No synopsis available yet. Please add.

sampling breath: Sampling breath provides a rapid determination of alcohol concentration in breath

Search or Seizure: When a police officer (or agent of the police) searches an individual's belongings and confiscates property.

Sentence - Impaired Curative Treatment:

Sentence - Impaired Minimum Penalty:

simulator: A scientific instrument which holds a standard alcohol solution and maintains that solution at a constant temperature similar to that of human breath 34.0 +-.2 degrees C. When air is bubbled through the standard alcohol solution and pushed into a breath test instrument the standard alcohol solution can be used to calibrate or check the calibration of the breath test instrument. Depending on the SAS used the simulator can be used to simulate a human being's breath who has a 50, 100, 150, 200, or 300 mg/100mLs blood alcohol concentration.

simulator thermometer:

sleeping drivers: No synopsis available yet. Please add.

slight impairment: Please be sure to differentiate impairment of ability to operate a motor vehicle.

smell of alcohol: Some people believe that pure alcohol has no odour. Others believe that their noses can detect pure alcohol. Sometimes an officer will detect the odour of an alcoholic beverage and may label that odour as strong. Sometimes an officer will label the odour as that of a particular alcoholic beverage. Strong odour does not necessarily indicate elevated blood alcohol concentration.

sobriety: No synopsis available yet. Please add.

sobriety tests: Sometimes police officers ask persons they suspect of drunk driving to place their finger to their nose, recite the alphabet, or walk a straight line. Different jurisdictions have different laws about whether or not you have to do these and whether or not they are admissible in evidence at trial.

Stellato: This case is only applicable to Canada. There is no such case in the US. The Ontario Court of Appeal decision in R. v. Stellato was upheld by the Supreme Court of Canada.

straddle cases: No synopsis available yet. Please add.

Subsequent Conviction: For some purposes and in some jurisdictions a conviction is considered subsequent to a previous offence only if the individual has been convicted of the first offence before the date of occurrence of the second offence. For other purposes or in other jurisdictions it is only the sequence of convictions or only the sequence of offence dates that is considered. You will need to consult a lawyer or attorney in your jurisdiction to obtain an opinion.

Suitable Sample: Breath samples vary depending on the portion of the lungs from which they are obtained. It may be up to the breath technician to determine whether or not a suitable sample has been received. That suitability may be the same or different from the suitability determined by the breath instrument itself.

suspension starts: Some jurisdictions have administrative driver's licence suspensions that start immediately on arrest. Some jurisdictions have automatic licence suspensions that commence upon conviction. Some jurisdictions give judges a power to prohibit driving for a period of time. Some jurisdictions have all of the above.

technician: No synopsis available yet. Please add.

timing of demand: No synopsis available yet. Please add.

Two Hour Limit:

Two Tests: Any blood alcohol concentration analysis by means of a breath sample can be significantly affected by the presence of mouth alcohol. One method to reduce the possibility of this sort of error is to perform two tests. The two tests are separate breath samples taken several minutes apart. The results of analysis of these two samples are compared to see if they are in good agreement. If the samples are within 20 mg/100mLs they are considered to be in good agreement.

underage: Drinking age varies by jurisdiction.

Unreasonable Delay: Every individual has a right to proceed with their legal matter within a reasonable amount of time. If there is a delay in proceedings an individual can argue that there has been an unreasonable delay.

use of cellular phone on arrest: See R. v. George in Ontario.

vehicle: Automobile is a conveyance that transports people or objects.

vessel: A boat, ship. Does it need a motor? Can an individual be convicted of intoxicated operation of a canoe or a sailboat? all things that float except small rowboats and sailboats?

Waiver : Give up the right, refuse an offer, eg. from the police to permit communication with a lawyer. Don't sign anything entitled "Waiver" without proper legal advice. Waiver of right to counsel, giving up one's right to a lawyer before interrogation or at Court Waiver of juvenile matter into adult court, transferring a juvenile matter into adult Court.

who can demand: No synopsis available yet. Please add.

work in the U.S.A. with a Canadian DUI: A Canadian with a Canadian DUI, impaired driving, over 80, refusal conviction will need to speak to a US immigration attorney.

youth: Young persons, youth, or juveniles are defined differently in different jurisdictions. Most jurisdictions have special laws, procedures, and rights for the benefit of young persons having to do with their special needs. Some jurisdictions employ a child protection model (Canada's old Juvenile Delinquents Act) to youth justice and others apply a criminal justice model (Canada's Young Offenders Act and Youth Criminal Justice Act).

zero tolerance: Zero tolerance connotes community condemnation of particular behaviour. Zero tolerance policies sometimes lead to presumption of guilt. Politicians, schools, and Courts need to be wary of zero tolerance policies if guilt is presumed or other Constitutional guarantees of rights are not protected. "Zero tolerance" is sometimes used in the context of driving under the influence of alcohol since drinking and driving is a major cause of death, injury, and damage in our communities. No matter how appropriate a "zero tolerance" policy may be from the perspective of politics, it is essential that a person suspected, accused, or charged with drinking and driving be afforded due process.

For more information respecting this database or to report misuse contact: Allbiss Lawdata Ltd., 303-470 Hensall Circle, Mississauga, Ontario, Canada, L5A 3V4. The author and the participants make no representation or warranty whatsoever as to the authenticity and reliability of the information contained herein. Advertisement. These lawyers do not practice in association. 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 authors disclaim any and all liability resulting from reliance upon such information. You are strongly encouraged to seek professional legal advice before relying upon any of the information contained herein. Legal advice should be sought directly from a properly retained lawyer or attorney.

DUI DWI: International Referral Database of DUI, DWI, Impaired and Drunk Driving, Drinking and Driving, Lawyers & Attorneys

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