The accused: drunk driving lawyer in BC

We stand accused. In fact, we’re guilty. We were reminded the other day that the reason we have the IRP scheme is the drunk driving lawyer in BC. And we’re not just talking about any one of us in particular or the lawyers in our office per se, but the particular subspecies and members of that group. We’re talking about the class or type of lawyers who defend drunk driving charges. If it were not for the drunk driving lawyer in BC, we would not have Immediate Roadside Prohibitions. That is true. Allow us to explain.

In British Columbia there are thousands of lawyers who do a good job dealing with all sorts of different types of cases. Many criminal defence lawyers deal with DUI-type cases from time to time. A handful, such as Kyla and Paul deal with drunk driving cases on a daily basis.

We found that for us, dealing with these types of cases every day, we became very good at it. For example, we’re statistically the most successful in the province for IRP defence because we deal with them every day. Before the introduction of IRPs, we had already carved a reputation for being very good at criminal drunk driving defence.

Now, criminal drunk driving defence is in many respects very different from defending IRPs. For example, when a person is charged with a criminal offence, they are entitled to all relevant disclosure in the possession of the government to defend themselves. With IRPs, the only disclosure you get is what they want to give you and the secret reports are hidden. With criminal drunk driving cases, the prosecution must prove the case beyond a reasonable doubt. With IRPs the ostensible hurdle is that one party, either the Government or the applicant, must prove the case on a balance of probabilities.

It’s no fun being a police officer

We sympathize with the police because they have an unenviable task. Imagine standing in the rain, or the freezing cold, sometimes for hours on end, to fill your shift at a roadblock. Some people are friendly, others are jerks, others are understandably irritated for the lost time in the line. Occasionally you catch a drunk driver. But for the odd drunk driver, you’d be bored out of your mind. But then again, if people didn’t drive over the limit or while affected by alcohol, you wouldn’t need to be there in the first place.

So as a drunk driving police officer your job is to check for something that doesn’t need to happen in the first place. Pulling weeds is more rewarding. At least the weeds don’t talk back. Or have Charter Rights.

Now, if you’re a police officer and you detain a suspected drunk driver, you step into a trap of sorts. First, you need to deal with the individual. Most people are not docile sheep, and if they’ve had a few drinks they might very well become argumentative and difficult. Many people are argumentative in any event. It’s a free country, so they say. And everyone is different. Some people are hostile and suspicious all of the time.

For a police officer, detaining a suspect in a drunk driving case means that they will then usually need to deal with that individual for a few hours. It can be unpleasant.

On top of that, in criminal drunk driving cases the police are expected to do so many things correctly that it’s almost ridiculous. For example, if the officer forgets to read the Breath Demand from the Charter card for 10 minutes while trying to keep all of the evidence in mind and while trying to make sense of the facts so far, the case will probably fall apart because of a Charter violation and failure to comply with the Criminal Code.

When the investigation is over, and the accused is released, the unlucky schmuck police officer, who arrested the accused drunk driver, must then sit down and write a report to the prosecutor. It’s not fun. Aside from the fact that you may be mocked for grammar, spelling and diction, when you write a police narrative you need to properly recollect what took place. You need to describe it in ways that make sense and you need to justify your actions. Forget something important? You may suffer in court. Tell the truth? You might protect your career if you lie.

A police officer who conducts a crappy investigation may be spared the indignity of going to court because the prosecutor won’t approve a charge. If, however, a charge is approved and the file ends up in the hands of a skilled BC drunk driving lawyer, it may become the worst nightmare for the officer.

Blame the drunk driving lawyer

Each drunk driving lawyer in our office recognizes that we have a job to do, which is to use the law and the defences in law to defend our client. To that end we do a bunch of things. We scour the police report to identify errors made by the police. We look for weaknesses in the evidence that we can highlight in court. We identify other evidence that we may be able to dig up to assist the client’s case. We think a lot. We research past cases. We spend months working out scenarios, testing theories and planning for the day in court.

Success or failure may come down to luck in court, or skill or more likely something that has required endless thought and strategic planning. This is the very business of the skilled drunk driving lawyer.

One thing we do a little differently in our law office is that we also have an emphasis on the machines used to prove a person is over the legal limit and the science behind drunk driving. For us this has been fruitful because it opens another avenue of defence for our clients.

But why would you blame drunk driving lawyers for the IRP scheme? We became too good.

Drunk driving lawyers in BC succeed in most cases

When it comes to criminal cases, a skilled BC drunk driving lawyer is likely to win the day in court. For example, Paul has gone several years without losing a criminal drunk driving case. Kyla has run some brutal drunk driving trials that looked terrible on first glance, and walked out with her client acquitted of the charges. She has defended drunk driving cases around BC and Alberta, some with serious accidents, and yet she maintains a stellar record of success. John Cheevers has been defending drunk driving charges for over 30 years. He pulls off acquittals in cases that often seem beyond hope.

Simply put, when there is a skilled drunk driving lawyer defending, the probability that the charges will stick falls substantially. The reasons for this are complex, but you can boil it down to this: on a reasonable doubt standard, many people accused of drunk driving are innocent.

Think for a minute about this. If the evidence is inadmissible in a criminal drunk-driving case because of a Charter violation, then the driver may be found not guilty. If the evidence is obtained in a manner that doesn’t follow the Criminal Code, the driver may be found not guilty.

Our bigger concern is that often a person may be innocent in fact, but the law is lagging behind when it comes to the current state of the science. For example, it’s only now coming out that alcohol impairment can be easily mistaken for symptoms of seasonal allergies like hay fever, or symptoms of an earlier concussion, or simply being different. Fatigue can make a person look impaired. An odour of liquor can be caused by many things other than alcohol from a drink. Some people produce alcohol in their body as part of a natural process.

Beyond that, the frailties of alcohol breath and blood testing are being further exposed every day. We have not found a breathalyzer that doesn’t have a flaw either in design or functioning, and the problems with blood tests are just freaky.

Many people are guilty and a genuine threat to the public. The problem, however, is that a huge number of people are innocent, both in law and in fact when you apply a reasonable doubt standard. An intellectually honest application of the reasonable doubt standard means that most people charged with drunk driving offences will be found not guilty.

How do you feel if you’re a cop?

You spent all day out there at a roadblock. Yuk. Then you detain a suspected drunk driver. You go through all of the rigamarole to put the file together for the prosecutor. Then things start to fall apart. The further material that you need to provide and disclose starts to make it look like you have a skilled drunk driving lawyer defending the case. The documents you need to hand over indicate that it’s not cut and dried after all. And then you go to court.

Testifying is no fun. How would you feel if you had an exam on something you did months ago? Imagine if the questions were about something that was very similar to something else, but you can’t quite remember which one you’re talking about. What would you do? Admit that you can’t remember, or try to reconstruct it in a way that might make sense?

Cross examination by a lawyer of a police officer is simply asking the officer questions. The thing is when a skilled lawyer cross examines a police officer, the lawyer already knows the answers to the questions. Essentially they have the answer key in front of them. The officer has only a few options. One is to lie. One is to explain what they remember and to admit when they don’t remember. The most common method is to try and reconstruct a memory that fits with what they probably did and what probably happened.

That, of course, is where the prosecution fails. In a criminal case “probably” is insufficient. And so, because the case is proven on a “probably” standard, but not a beyond-a-reasonable-doubt standard, the client is found not guilty.

Intellectual honesty

In most criminal drunk driving prosecutions, with a skilled drunk driving lawyer, the client is acquitted. Critics complain and blame the judges, the lawyers or “the system” meaning the judicial/legal system. If, however, you apply an intellectually honest approach to the evidence and apply a beyond-a-reasonable-doubt standard, the evidence would lead to an acquittal. And the fact that most people are acquitted in this scenario emphasizes the veracity and intellectual righteousness of the process. Our courts, you may conclude, are effective in protecting the innocent from wrongful conviction. At least with respect to drunk driving cases.

What about the cold wet police officer?

Like lawyers, police are trained to respect the justice system. But then regularly we hear the police criticizing the justice system and decisions of the courts, particularly when some suspect is acquitted. The frustration is palpable and understandable.

Worse still is that as a police officer you often come away feeling like a failure. The experience of testifying is often humiliating. As a police officer you operate with some presence of authority most of the time. To have that crushed is often hard to take.

What about the Government?

From what we can see, our elected officials don’t understand the justice system, the courts and how the police do their jobs. They tend to defer to the police, meaning that they accept when the police tell them that everyone is guilty. They look at the number of acquittals and people found not guilty of drunk driving charges and they assume that it’s a defect of some sort. They assume that the justice system is flawed because the police are put under scrutiny and many people are therefore acquitted.

Our government drew up the IRP scheme because they thought the system was flawed. What they came up with was far worse. You can read about that in the 400 previous posts and in the ones coming in the following days.

Who says the BC drunk driving lawyer is at fault?

The funny thing is that police and prosecutors regularly remind us that we’re the reason the IRP scheme was created. They say “you guys were so good, you won so often, pissed off so many police officers and undermined the system with these defences and so the government had to do something.” They have a point.

On the other hand, many people accused of drunk driving are innocent. If you take an intellectually honest approach to the evidence in the case as presented in court, often you can’t say that the accused committed the drunk driving offence beyond a reasonable doubt.

Are we guilty? We perturbed the government such that they created the IRP scheme. In that sense you can blame the BC drunk driving lawyer. Then again, many people are innocent.  And should the fact that we’re good at what we do be the justification for bad law?

We don’t think so.