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LONDON DRINKING AND DRIVING LAWYER

Charges for driving under the influence (DUI) can range from “impaired driving”, “over 80” or “refusing to provide a breath sample.” As a result of the sophisticated breathalyzers and roadside screening devices used by police, these charges are challenging to defend. With the serious consequences associated with a conviction, hiring experienced and thorough defence counsel is critical.

CityNews Jordan Donich LawyerThe Criminal Law Group specializes in defending law-abiding citizens, without criminal records, who are confronted with these allegations. We have provided expert representation, defending institutional traders, financial district employees, local construction union workers, hospital staff, students and many other young professionals faced with Impaired Driving allegations. Recently, after nearly 3 years of litigation, the Criminal Law Group secured a full acquittal at trial, in its R. v. F.B.

[2016], where the accused was alleged to have operated a Skyjack on a construction site, for which keys were found in the ignition.

In the Criminal Law Group’s R. v. M.V. [2014], it secured a full withdrawal of Over 80 by high profile Bay Street Investment Banker charged at a RIDE stop. It further secured a withdrawal of Impaired Driving and Over 80 in its R. v. M.Z. [2014], where the driver, a daughter of an OPP officer,  flipped the car in a ditch and had Breathalyzer readings over 160 mgs. In its R. v. B.P. [2014] the Criminal Law Group further secured a withdrawal of Impaired Driving where the driver fell asleep in his vehicle covered in vomit. In its new R. v. K.C. [2015] it secured a withdrawal of Impaired Driving where the female driver had Breathalyzer readings over 260 mgs, and was caught trying to conceal open alcohol in the vehicle at the scene of the accident. In its R. v. V.T. [2013], it secured a withdrawal of Impaired Driving and Refusing to provide a sample where the driver attempted to flee from police and was apprehended on the run. The Criminal Law Group has also defended a number of drivers impaired by drugs. In its new R. v. J.F. [2015], it defended a Toronto Business Consultant charged with Impaired Driving for combining and consuming over the counter pain medication.

In  the twelve months prior to April 2015, it secured three separate Careless Driving resolutions for Impaired Driving allegations in Toronto. The Firm defended a Hollywood Stunt Man charged with impaired driving, where the driver blew over 300 mgs, in its R. v. D.G. [2015].

We have experience critically analyzing breathalyzer readings, including police investigative technique and search warrant protocol. We have extensive technical knowledge of the use, operation and calibration of the latest police breathalyzer technology. Depending on the nature of the breathalyzer readings and time they were conducted, we frequently work with toxicologists and other industry experts in positioning your defence.

Drinking and driving charges are complex, we have the tools and skills for your defence.

What is the Difference between Impaired Driving and “Over .80”?
What does the Crown have to Prove for a Conviction of Impaired Driving?
What is an Approved Screening Device (ASD)?
What happens if I register a Fail on the ASD?
What Are the Penalties if a Warm Reading (.05 – 0.8) registers on an ASD?
Can you be Charged with Impaired Driving if you are Operating Machinery or Equipment?
Can you be Charged with Drinking and Driving on an ebike?
Can you still be Charged with Impaired Driving if the Vehicle is Not in Motion?
What is Refusing to Provide a Sample?
Can you be Convicted of both Refusing to Provide a Sample and Impaired Driving?
Are there any Minimum Jail Sentences associated with a Drinking and Driving Conviction?

What is the Difference between Impaired Driving and “Over .80”?

Impaired driving and “Over 80” are both criminal offences outlined in Section 253 of the Criminal Code. However, they are not the same thing, even though both charges arise when an accused person operates or has the care or control of a vehicle.

Section 253(1)(a) of the Criminal Code sets out that an impaired driving charge requires police officers to believe drugs or alcohol impair the person operating a vehicle. The charge is not dependent on a specific amount of alcohol in the system, rather it depends on evidence of any impairment. For example, impaired driving charges can arise when people are new to drinking or don’t have a very high tolerance for alcohol. Even a couple of drinks can yield impaired driving charges.

Comparatively, Section 253(1)(b) of the Criminal Code sets out that an over 80 charge refers to a specific amount of alcohol found in the blood stream of an individual. The charge requires alcohol be consumed in such a quantity that concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred milliliters of blood. This charge is laid after the police have conducted a sobriety test and found the accused violates this legal limit.

What does the Crown have to Prove for a Conviction of Impaired Driving?

For a conviction of impaired driving under Section 253(1)(a) the Crown must prove:

  • The Accused was operating a Motor vehicle or in Care and Control of the vehicle;
  • There was any amount of impairment of the accused ability to drive at the time;
  • The impairment was by alcohol or drug at the time.

A conviction for impaired driving does not require an individual be actually driving the vehicle. If the accused has a vehicle in his or her care and control, that is sufficient for an impaired driving conviction.

What is an Approved Screening Device (ASD)?

An approved screening device is a portable instrument that measures blood alcohol levels. Section 254 of the Criminal Code defines an approved screening device as a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that is approved for the purposes of this section by order of the Attorney General of Canada.

An approved screening device is what police officers use to check for impaired driving at roadside stops. Police can ask you to submit to an approved screening device if they reasonably suspect a motorist has alcohol in his or her body.

An approved screening device is not the same thing as an approved instrument. The approved screening device is used portably by police officers to try and detect impaired driving. Comparatively, approved instruments are used in a controlled setting with a technician performing the test. Over 80 convictions require testing be done on an approved instrument.

What happens if I register a Fail on the ASD?

If a driver registers a fail on an approved screening device, this gives police officers reasonable grounds to require the individual to submit to a further test using an approved instrument. Approved instruments are used to gather evidence for criminal prosecutions.

A fail of the initial approved screening device may result in a temporary suspension of the driver’s licence, whether or not criminal charges are laid.

What Are the Penalties if a Warm Reading (.05 – 0.8) registers on an ASD?

If you give a roadside breath sample and your blood alcohol registers between 0.05 and 0.08 you will immediately lose your licence for 3 to 30 days. Although this is not a criminal offence, the consequences remain serious.

The penalties for a warm reading vary depending on whether it is the first time you have registered a warm reading or not. New penalties as of 2009 set out that:

  • First warm readings result in:
    • 3 day licence suspension;
    • $150 administrative monetary penalty;
  • Second warm readings result in (within 5 years):
    • 7 day licence suspension;
    • Mandatory alcohol education program;
    • $150 administrative monetary penalty.
  • Third warm readings result in (within 5 years):
    • 30 day licence suspension;
    • Mandatory alcohol treatment program;
    • Six-month ignition interlock licence condition;
    • $150 administrative monetary penalty.
  • Subsequent infractions (within 5 years):
    • 30-day licence suspension;
    • Mandatory alcohol treatment program;
    • Six-month ignition interlock licence condition;
    • Mandatory medical evaluation;
    • $150 administrative monetary penalty.

It is also important to note that these roadside suspensions cannot be appealed. They will be recorded on the driver’s record and for the next five years they will be considered when determining consequences for subsequent infractions.

Can you be Charged with Impaired Driving if you are Operating Machinery or Equipment?

Yes, you can be charged with impaired driving if you are operating machinery or equipment, provided it meets the description of a motor vehicle. Section 2 of the Criminal Code defines a motor vehicle as a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment.

 Can you be Charged with Drinking and Driving on an ebike?

Yes, you can be charged with impaired driving if you are operating an ebike. Section 2 of the Criminal Code defines a motor vehicle as a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment.

An ebike has been characterized as a motor vehicle.

Can you still be Charged with Impaired Driving if the Vehicle is Not in Motion?

Yes, Section 253 states that impaired driving charges can arise in two ways: (1) by operating the vehicle; or (2) by having the vehicle in his or her care and control, whether it is in motion or not.

Therefore, if a person is found consuming alcohol in their vehicle that is parked, he or she can still be charged with impaired driving because Section 253 does not require a vehicle be in motion for charges to arise.

What is Refusing to Provide a Sample?

Section 254(5) of the Criminal Code states that it is a criminal offence to fail or refuse to comply with a demand made for a breath sample without reasonable excuse.

Charges for refusing to provide a breath sample arise when an individual is stopped by police and asked to submit to a breath test, but the individual will not do so. It is a criminal offence to refuse to do so.

Can you be Convicted of both Refusing to Provide a Sample and Impaired Driving?

Yes, a person can be convicted of both refusing to provide a sample and impaired driving if evidence proves they are guilty of both. Impaired driving does not require proof from an approved device of a specific blood alcohol content. Therefore, it is possible to prove impaired driving without evidence from a screening device if the accused person refused to give a sample.

Are there any Minimum Jail Sentences associated with a Drinking and Driving Conviction?

Yes, there are minimum jail sentences for drinking and driving convictions. There are no minimum jail sentences for first convictions. However, if an individual is convicted of a second drinking and driving offence there is a mandatory minimum sentence of thirty days imprisonment. For any subsequent offences, a mandatory sentence of at least 120 days imprisonment will be imposed.

We are well equipped and experienced with drinking and driving defence tactics, often working closely with toxicologists. These allegations are very complex. We undertake a forensic analysis of police statements including operating and calibration protocol for Breathalyzer and roadside screening equipment.

416-DEFENCE | 416-333-3623

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