How to Defend Drinking and Impaired Driving?

Impaired driving offences are considered a serious public safety risk to Canadians. As a result, courts across the country have taken a harsh stance on sentencing including regularly sentencing offenders to jail. Donich Law has experience defending individuals from all walks of life charged with various impaired driving offences including refusal. We regularly obtain favourable results for our clients including those who have been charged as first time and second time offenders.

Can I Refuse to Blow?

A person cannot simply refuse a demand to provide a breath sample for roadside screening. Section 320.15 of the Criminal Code makes it a criminal offence for anyone to knowingly refuse to comply with a police demand to undergo mandatory screening. The penalties for that offence are the same as for an impaired driving offence where a demand was complied with.

There is an exception to this rule for people who are physically incapable of providing a breath sample for medical reasons. For example, any person who would be unable to generate the ten seconds of air flow necessary to register a reading on an Approved Screening Device because of extreme respiratory issues like asthma can refuse to provide a sample. However, to successfully refuse the demand would require a person to have medical documentation on their person to show the police as proof of their condition. If proof is not available at the time, an individual would be arrested. They must then introduce that evidence through the trial process as a defence to the charge against them.

When determining the appropriate sentence for an individual convicted of impaired driving or refusal, the Court will consider all relevant aggravating and mitigating factors. The more aggravating factors present in a case, the more likely it is that the accused will be sentenced to a period of custody. For example, where the driver was involved in an accident, there was property damage, or someone was injured, the offender is more likely to be sentenced to a period of custody. Further, the level of impairment will also play a role in sentencing. Where the accused was only slightly over the legal limit, they are more likely to be treated with leniency than someone who was significant intoxicated. Whether or not the accused is a second time offender will also play a significant role in sentencing. Those convicted of a second or subsequent impaired driving offence will face mandatory minimum jail sentences.

Disclosure – Why Does it Takes so Long?

Disclosure is a lengthy process that begins at the police station after someone has been arrested for impaired driving. Once arrested, the police start a case file and compile all the evidence against a person pertaining to the offence they committed. For an impaired driving case, this will include the results of the mandatory screening done by the accused on the police officer’s Approved Screening Device. The file will also include the official breathalyzer test results, as well as any other evidence such as witness or victim statements. The process for completing the file can often several weeks. After the file is complete, it is sent to the Crown.

Once the Crown has possession of the file, they begin a two-stage process. The first stage is known as vetting. Vetting means that the Crown must review all available evidence, making sure that there is no contact or personal information included from victims or third parties that would be given to the accused. Once vetting has been completed, the next stage is screening. Screening is where the Crown determines their position concerning what sentence an accused person is facing for their offence. Overall, since the COVID-19 pandemic, the entire disclosure process can take up to several months to complete and be provided to the accused.

Disclosure – What is the Process for Getting it? 

There are several ways to obtain a disclosure package. The rules for obtaining them are specific to individual courthouses and they can usually be acquired before a person’s first or second court appearance. One way to obtain disclosure is for an accused person to go to the Crown office at a courthouse in person to pick up a physical copy of the package. Initial disclosure packages are often lengthy documents between 50-100 pages long.

It is also possible to receive an electronic copy of the package if requested by the accused person or their lawyer. Defence counsel can send a request for disclosure to specific emails run by the Crown. Once that request has been processed, the person or their lawyer will receive an electronic version of the disclosure package once it has been uploaded to the Ontario Disclosure Hub database.

When can Police Stop Me and Demand a Breath Test?

Under s. 320.27(2) of the Criminal Code, the police have the authority to conduct mandatory alcohol screening and stop an individual if they have in their, “possession an approved screening device, [they] may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature… by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in [their] opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.”

This gives police the power to stop any person on the road at any time if they have the necessary equipment to conduct the screening. If they suspect impaired driving but do not have a device, they may call to have one brought to the scene. This power granted to the police by the Code is shown in the Ontario Superior Court of Justice case of R. v. Khandakar, 2023 ONSC 1971 (CanLII), which involved the police stopping the accused to conduct mandatory screening with an approved screening device. It also clarifies that the consequence for refusal as a different offence than impaired driving.

What if I was not Driving or at my Car when I was Asked?

Section 320.14(1) (b-d) of the Code are provisions that makes it an offence to have a blood alcohol concentration, blood drug concentration or a mixture of the two over the legal limit for up to two hours after a person has stopped driving or “operating” a vehicle. A person will not be convicted of these offences if they have truly stopped driving and have no reason to believe a police offer may demand that they produce a breath sample. However, if a person has driven within the required time frame while over the legal limit and has reason to believe a demand will be made, they will have committed an offence.

To enforce this law, police officers are authorized to make a demand of a person to complete mandatory screening even if they are not currently driving or in their car. The Code uses the word “operating” because it has a wider meaning than just driving. To operate something according to s. 320.11 means to, “drive… or have care or control of it.” In practice, this means that if the police encounter a person who is over the legal limit in or near their car with their keys, but not actually driving, there is a strong likelihood that the police will find the person has committed an offence because they could drive.