We know all about Impaired Driving Law because we defend all types of drinking and driving cases for people around BC including the criminal offences of Driving Over .08 (80mg in 100ml), Impaired Driving, Care and Control, Refusal or Fail to Blow, and Drug Impaired Driving cases. We defend people from every corner of British Columbia. We are the most successful lawyers in BC defending Immediate Roadside Prohibitions (90-day IRP for blowing Fail or refusal/fail to blow).
About Criminal DUI in BC
Impaired Driving is a crime in British Columbia. The Criminal Offences related to driving unlawfully due to alcohol and drugs are sometimes collectively called DUI or DUIs.
If convicted in court of Driving Over .08, Impaired Driving or Refusal to Blow for even your first offence you get a criminal record and you must pay a substantial fine. There is a 1-year minimum driving prohibition if convicted, which may be longer depending on the decision of the court. After completing the driving suspension, you must complete the Responsible Driver Program (approximately $930) and then you’re facing interlock device installed in your vehicle (approx. $2000 per year) before you can get your licence back. You cannot get a conditional discharge for a criminal DUI in British Columbia. If convicted, it means a criminal record.
Defending your DUI
Driving lawyers Paul Doroshenko, Q.C. and Kyla Lee have been successfully defending criminal Impaired Driving (DUI), Over .08 and Refusal to Blow cases throughout British Columbia for nearly 2 decades. They know the defences that work and how to challenge police evidence in criminal driving cases.
See Also: 90-day Immediate Roadside Prohibitions
See Also: ADP Administrative Driving Prohibitions
See Also: Drinking & Driving Case Results
From Our Blog: Papers the Police Give You in Drinking/Driving Cases
From Our Blog: Court Papers in Drinking Driving Cases
Facts About Impaired Driving
Governments have struggled for decades to reduce the number of people who get behind the wheel after drinking too much alcohol or using intoxicating drugs. Federal law makes it a crime to operate or have care and control of a motor vehicle while the driver’s ability to drive is impaired by alcohol or a drug. The common criminal charges are impaired driving and driving with a blood alcohol concentration exceeding 80 milligrams in 100 milliliters of blood or refusing a lawful demand, normally for a breath or blood sample.
To prove their case the prosecution must show that the functional ability to operate a motor vehicle has been impaired. The test is impairment from slight to great, but the evidence required to prove impairment must establish the condition beyond a reasonable doubt. This may include physical symptoms such as slurred speech, bloodshot eyes, an odour of alcohol beverage, physical coordination problems as well as bad driving.
The police and witnesses normally testify concerning their observations of the suspected driver. A lawyer skilled in the art of cross examination can call into question the accuracy and the meaning of the observations. For example, the witnesses may have a poor recollection of surrounding events, poor notes or documents to support their observations. They may have misinterpreted their observations, mistaking illness for impairment, poor footwear for poor balance, inadequate driving skills for an inability to drive.
Driving Over 80 mg.
“Over .08” or having a blood/alcohol concentration in excess of 80 mg in 100 ml of blood is an offence normally proven with breath tests. The Criminal Code allows the police to make a formal demand to require a driver to provide samples of their breath for analysis into a Breathalyzer–style instrument. In BC the device is an Intox EC/IR II, which is an instrument that captures and tests a minuscule sample of subject’s breath as it flows through the internal manifold.
The proper procedures to operate the Intox EC/IR II are rigorous and rarely followed 100% correctly by the police.
In our Law Offices we have two Intox EC/IR, several BAC Datamaster breathalyzers, an Intoxilyzer 5000 as well as large collection of different types of Approved Screening Devices (ASD), the original Borkenstein Breathalyzers made by Smith and Wesson as well as the equipment to test and calibrate the most current breathalyzers in British Columbia.
Our DUI lawyers have studied the errors that occur when using these breathalyzers, and we know how to show when they have been used incorrectly.
Breath or Blood samples and the Charter of Rights and Freedoms
See Also: Your Rights
Breath or blood samples can only be obtained in a lawful process. What this means is that the police cannot take samples unless they follow rules in the Criminal Code. The rules are strict, sometimes contradictory and very difficult to follow correctly. It’s our job to know the rules better than the police. If the police take samples in violation of the rules, they violate the driver’s Charter right to be free from unreasonable search and seizure. Upon Application to the Court by a Criminal Lawyer, this will often lead to the case being thrown out.
Refusing a Breath Demand
With respect to impairment by alcohol the police may make demands for breath or blood samples during the course of their investigation. Failure without a lawful excuse to comply with a lawful demand is a criminal offence. A demand that is not lawful may be lawfully refused; although this is something typically determined in court and should not be considered in making a decision concerning whether to blow.
The danger of refusing to blow is that you may be convicted of refusing to provide a sample AND impaired driving. You cannot be convicted of impaired driving and over .08 for the same incident. If you are convicted of refusing to provide a breath sample, the minimum fine is $2000 plus a one-year driving prohibition and criminal record.
Care and Control
The phrase “care and control” is taken from the Criminal Code referring to the offence of having care and control of a motor vehicle while one’s ability to operate a motor vehicle is impaired by alcohol or a drug. Although it is considered a separate offense, you cannot be convicted of impaired driving and care and control while impaired from the same set of facts. When the police recommend a change of “care and control” it suggests that the evidence may be insufficient to prove that the suspect occupied the seat for purpose of putting the vehicle in motion.
All alcohol and impaired driving related criminal convictions end with a criminal record, lengthy driving prohibition and significant fine. As of December 2018, the minimum punishment for a first offence of refusal is a criminal record, a $2000 fine and a 1-year absolute prohibition from driving. For the offence of driving over .08 the punishment depends on the purported blood-alcohol concentration. On a second offence, a conviction will lead to at least 30 days in jail and at least 120 days jail for a third or more convictions.
If the offence leads to bodily harm to another person jail a jail sentence is nearly inevitable. In BC a third offence leads to a lifetime driving prohibition.
Roadside Breath Tests
See Also: How the Roadside Breath Tester Works
The police in Canada have the authority to demand that a person provide a sample of breath into an Approved Screening Device (Roadside tester) when a police officer:
Reasonably suspects the person has alcohol in their body,
The person has within the proceeding three hours operated or had care and control of a motor vehicle.
The driver is lawfully stopped and the police officer has an ASD in their possession.
The demand must be made forthwith and the sample must be taken forthwith, meaning right away.
Blowing a “Fail” on a Roadside Tester
IT IS NOT A CRIME to fail on the Approved Screening Device (ASD), nor can the results be used to prove a person was over .08 or impaired.
In BC a Fail result will normally cause a police officer to issue you a 90-day Immediate Roadside Driving Prohibition (IRP). On rare occasions an officer may make a breath demand for further samples, usually taken at a police detachment as part of a criminal investigation.