Navigating DUI Charges
Being charged with impaired driving can be a daunting experience, as it encompasses various criminal offenses collectively referred to as Driving Under the Influence (DUI). These charges may include:
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Impaired driving
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The “Over 80” rule
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Refusal to provide a breath sample
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Impaired care or control
Law enforcement typically conducts a roadside breath test to determine blood alcohol concentration (BAC). If the BAC is below 50 milligrams per 100 milliliters of blood, it is considered a pass. A result between 50 and 80 milligrams is marked as a warning, while exceeding 80 milligrams results in a failure, leading to potential charges.
Consequences of Impaired Driving Charges
If charged with impaired driving, it is crucial not to immediately plead guilty without understanding your options. Consulting a skilled criminal lawyer can help identify possible defenses and strategies.
The repercussions of impaired driving charges can be severe, including temporary loss of driving privileges, which may impact employment. Additionally, insurance premiums can skyrocket if convicted.
For those charged, the minimum penalty typically involves a $1,000 fine and a one-year driving prohibition, regardless of whether a breath sample was given.
Penalties for “Over 80” Charges
Since May 2009, Ontario law stipulates that individuals with a BAC between 50 and 80 milligrams can face charges. First-time offenders face a three-day license suspension and a $150 fine. A second offense within five years results in a one-week suspension, mandatory alcohol education, and another $150 fine. A third offense leads to a month-long suspension and the installation of an ignition interlock device for six months.
Insurance companies often label repeat offenders as high-risk, leading to annual premiums exceeding $10,000 for several years, or even outright policy cancellation.
Process Following a DUI Charge
After being charged, the police typically issue a Promise to Appear, often requiring attendance for fingerprinting and photographs. Failing to comply may result in additional charges.
If there is a previous conviction related to drinking and driving, the accused may receive a Notice of Application for Increased Penalty, enabling the Crown to seek harsher penalties.
A comprehensive package known as “disclosure” includes police reports, witness statements, analysis certificates, and video recordings from the arrest. This detailed documentation is crucial for building a defense.
Role of Kruse Law Firm
Upon retaining Kruse Law, our DUI lawyers will immediately request disclosure from the Crown Attorney. Our legal team will carefully review all evidence and documentation, identify any gaps, and provide guidance on next steps.
The Intake or Remand Process
Typically, an initial intake or remand process lasts about three months. This phase includes the accused’s first appearance before a Justice of the Peace, followed by several procedural appearances.
If represented by a lawyer, the accused may not need to attend these sessions. Our lawyers will file a designation on behalf of the client, minimizing the stress of court appearances.
During this period, our firm will assess the evidence, discuss the case with the Crown Attorney, and advise on the likelihood of a favorable outcome. A trial date is usually set between six to twelve months after the first appearance.
Legal Representation for DUI in Ontario
Due to the complexities involved, hiring an experienced criminal lawyer is essential. Our team will help assess the strength of the case, possible defenses, and any implications for Canadian citizenship. Do not plead guilty without knowing your options—contact Kruse Law for a consultation.
Frequently Asked Questions (FAQs)
What constitutes impaired driving ?
Understanding Impaired Driving Charges
Impaired driving charges fall under Section 253(1)(a) of the Criminal Code. To secure a conviction, the Crown must establish beyond a reasonable doubt that the accused's ability to operate a motor vehicle was compromised due to alcohol or drug consumption.
Although impaired driving charges involving drugs are relatively uncommon, they can be challenging for the Crown to substantiate beyond a reasonable doubt.
How the Crown Proves Impairment
To demonstrate impairment, the Crown typically presents testimony from witnesses regarding the accused's physical symptoms and driving behavior at or around the time of the incident. The following indicators may be used as evidence:
Erratic driving, such as weaving on the road
Involvement in a motor vehicle collision
The presence of an alcohol odor on the breath (while not conclusive of impairment, itmay indicate prior alcohol consumption)
Bloodshot or watery eyes (not definitive proof of impairment)
Signs of physical instability, such as balance issues, difficulty walking, or coordination problems
Slurred or unclear speech
By presenting such evidence, the Crown aims to establish that the accused's motor skills or judgment were impaired while operating a vehicle.
What is an exceed or over 80 charge ?
Definition of 'Over 80' Charge
The offense of operating a vehicle with a blood alcohol concentration (BAC) exceeding 80 milligrams per 100 milliliters of blood, commonly known as an 'over 80' or 'exceed' charge, is outlined in section 253(1)(b) of the Criminal Code.
This charge typically arises when a driver is taken to a police station and required to provide two separate breath samples using a Breathalyzer or Intoxilyzer device, with at least a 15-minute interval between the tests. If the lower of the two recorded BAC levels surpasses the legal limit of 80 mg per 100 ml of blood, the driver can be charged with the offense.
However, proving an 'over 80' charge can be challenging for the Crown as it must demonstrate, beyond a reasonable doubt, that the driver's BAC at the time of testing was the same as at the time of operating the vehicle.
How the Crown Proves an 'Over 80' Charge
To establish an exceed charge, the Crown must provide conclusive evidence that the BAC at the time of testing accurately reflects the BAC at the time of driving. This means proving beyond a reasonable doubt that no change in the driver’s alcohol level occurred between the time of operating the vehicle and the time of the breath tests.
What is the difference between impaired driving and the “Over 80” charge?
Difference Between Impaired Driving and 'Over 80' Charge
Impaired driving and an 'over 80' charge are distinct offenses under the Criminal Code. While both relate to driving under the influence, the key difference lies in how they are determined. Impaired driving, found under section 253(1)(a), focuses on the driver’s behavior and physical symptoms of impairment, regardless of their blood alcohol level. For instance, someone who rarely drinks may show clear signs of impairment after a few drinks, such as slurred speech or weaving while driving, but might still test below the legal BAC limit.
On the other hand, an 'over 80' charge is purely based on the alcohol concentration in the blood, irrespective of visible signs of impairment. A chronic alcoholic, for instance, may have a BAC over the legal limit but not display typical signs of intoxication. Therefore, the charge of impaired driving concerns the observable effects on the driver, while the 'over 80' charge strictly pertains to the numerical BAC value.
Can I be arrested without providing a breath sample?
Arrest Without Roadside Breath Sample
Whether the police can arrest someone without administering a roadside breath test depends on whether the individual displays signs of impairment due to alcohol. If the police have reasonable and probable grounds to believe a person’s ability to drive is impaired, they can arrest without requiring a roadside screening test (also called an 'alcotest').
If the police only suspect that the driver has consumed alcohol (e.g., if the driver admits drinking or has an odor of alcohol on their breath without other signs of impairment), they must administer a roadside breath screening test before deciding on an arrest. If the test result is a pass, no charges are laid, and the driver can leave. A warning result (50 to 80 mg %) leads to a three-day license suspension and usually towing of the vehicle but does not result in an 'over 80' charge.
If the driver fails the roadside screening test (registering 100 mg % or more), they are arrested for 'over 80' and taken to the police station for two formal breath tests using an Intoxilyzer. If the station test results are 80 mg % or lower, no DUI charge is typically laid. The police round down readings to the nearest 10 mg %, so if the readings are 85 mg % and 88 mg %, they would be rounded down to 80 mg %, likely avoiding an 'over 80' charge.
The roadside screening device is designed to fail at 100 mg % (not at the legal limit of 80 mg %) to provide the driver with the benefit of the doubt. However, these screening test results do not serve as evidence in court, aside from justifying the arrest.
If an officer arrests without conducting a roadside test, a DUI lawyer may challenge the arrest by reviewing the police reports to assess whether there were reasonable and probable grounds for the arrest. If grounds are insufficient, the lawyer may file a Charter application to exclude the breath test evidence from the trial. Should the judge find the arrest unjustified, the breath sample results could be dismissed, significantly weakening the Crown's case.
What happens if I refuse to take a roadside test?
If an individual refuses or fails to comply with a breath demand, for instance by saying "no" or pretending to blow into the device, they will face charges for refusing or failing to comply with a breath demand or providing a breath sample. The Crown must establish beyond a reasonable doubt that the refusal to provide a breath sample or failure to comply was definitive and without ambiguity, referred to as a 'final and unequivocal' refusal.
Even if the Crown successfully proves a 'final and unequivocal' refusal, there are possible defenses to this charge, particularly if there is a 'reasonable excuse' for not providing the breath sample.
Many of the valid defenses for refusing to provide a breath sample are applicable both to refusals of roadside screening devices and to refusals of Intoxilyzer breath demands. (Refer to the section "What Happens When a Person Refuses to Provide a Roadside Sample" for more information.)
Courts have recognized various circumstances as reasonable excuses. For example, a health condition that prevents a person from giving an adequate sample may be a valid defense. Another potential defense is if the individual was treated improperly by the police during the breath testing process, causing emotional distress or confusion that impacted their ability to comply. The range of reasonable excuse defenses is broad and not exhaustive, as each case must be individually assessed to determine if a valid defense exists.
Generally, it is advisable for individuals who are under arrest to comply with breath sample demands. While there are exceptions to this rule, an experienced DUI lawyer would typically advise compliance due to the risk involved in refusing and hoping the case later fits one of the rare exceptions.
What is a roadside screening device?
We are all familiar with the RIDE (Reduced Impaired Driving Everywhere) Program. If an individual is pulled over as part of this program, and the officer detects the smell of alcohol on their breath, it gives the officer reasonable grounds to suspect that the individual has been drinking and has alcohol in their system.
Once this suspicion is formed, the officer has the authority to immediately make a demand for a breath sample using an approved roadside screening device. In most cases, the individual must comply with this demand. At this point, the officer is not required to inform the individual of their right to counsel, which is typically read from a card and includes a toll-free number for duty counsel. There are, however, exceptions to this rule. The safest approach is to always comply with the request for a roadside breath sample since assuming a specific situation might be an exception is risky.
After making the demand for a roadside breath sample, the officer must promptly provide the approved screening device and obtain the breath sample. If the device needs to be brought to the location, the time taken for this can impact the case. If the delay is significant, the charges may be dismissed because the individual was held for too long without being informed of their right to counsel or because the breath sample was not obtained promptly.
The approved screening device classifies the result as a pass, fail, or warning. A pass indicates a BAC below 50 mg per 100 ml of blood. A warning is recorded if the BAC is between 50 and 100 mg per 100 ml of blood. A fail occurs when the BAC exceeds 100 mg per 100 ml of blood, despite the legal limit being 80 mg per 100 ml of blood.
If the individual passes, they are allowed to continue their journey. A warning results in a three-day license suspension for first-time offenders and the towing of their vehicle. If the person fails the screening test, they are arrested based on reasonable and probable grounds that their BAC is over 80 mg per 100 ml of blood.
Following the arrest, the officer will demand two formal breath samples to be collected at the police station using an Intoxilyzer device. These tests, unlike the roadside screening test, are considered the definitive BAC tests. The roadside test primarily serves to establish grounds for arrest, while the Intoxilyzer tests at the station determine the actual BAC level for legal proceedings.