In Canada it is a criminal offence to operate a conveyance (typically a motor vehicle) while impaired in your ability to drive by alcohol, a drug, or a combination of alcohol and drugs. It is also a criminal offence to have a blood-alcohol concentration at or over 80 milligrams of alcohol in 100 millilitres of blood in the 2 hours AFTER operating a conveyance. It is also a criminal offence to refuse to provide breath or a bodily substance pursuant to a lawful demand made by a police officer.
It is common to refer to these offences as “Impaired Driving” offences. Sometimes they are called “DUI” or “DUIs.”
Until 2018, the law referred to a “Motor Vehicle.” The new law speaks of a “Conveyance” which includes motor vehicles, boats, aircraft and other types of vehicles and vessels.
As these are criminal offences, they are matters that require a court appearances, a plea of guilty or not guilty, a trial when there is a not-guilty plea and, if convicted, a sentencing hearing.
The Typical Impaired Driving Offences
The offences relating to impaired operation of a conveyance are delineated in the Criminal Code of Canada. Section 320.14(1) speaks of the offences of impaired operation of a conveyance and having a blood-alcohol concentration at or equal to 80 milligrams in 100 millilitres of blood. Section 320.15(1) lays out the criminal charge of refusing to blow or comply with a breath or blood demand made by a peace officer.
Operation while impaired
- 320.14 (1) Everyone commits an offence who
- operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;
- subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;
Failure or refusal to comply with demand
- 320.15 (1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.
The Role of an Impaired Driving Lawyer
Impaired driving law is one of the most complex areas of criminal law and consequently many lawyers do not attempt to defend these cases. We do defend these cases and it is our regular practice.
Although drinking-driving cases are one of the most common criminal offences in Canada, the number of people who are acquitted is significant. What this tells you is that many people who are investigated and charged with an impaired driving offence are wrongly prosecuted. A staggering number of people in Canada have been charged with impaired driving and later acquitted. Although it is one of the most common charges, it is also one of the most common allegations to ultimately defeat.
Of the handful of lawyers who handle criminal impaired driving charges, a few make it their particular area of interest by obtaining the police breath testing equipment, taking specialized training and joining and participating in focused impaired driving defence training.
The Charter of Rights
Criminal defence lawyers are part of the Charter of Rights. If you are investigated and detained by the police in a criminal case, including a drinking-driving investigation, you have a RIGHT to contact a lawyer while under police detention and you have a RIGHT to be represented by a lawyer in court. Because of the complexity of the facts and the law in criminal drinking-driving investigations, this right is all the more important.
In addition, the Charter of Rights creates a number of significant obligations on the police. In Criminal impaired driving cases the police are expected to fully implement and comply with their obligations to ensure the detained person’s rights are fully recognized. This obligation opens up avenues for an impaired driving lawyer to challenge the evidence.
When the police violate Charter rights during the course of an investigation, the product of their investigation, the evidence obtained or observed, may be ruled inadmissible by the court. Lawyers who defend these cases regularly are trained and skilled to identify these Charter violations and understand how to elucidate them in the proceedings in court. It is common for Charter violations to provide an avenue for the successful defence of an impaired driving or refusal to blow case.
Beyond the Charter
There has been a long history of lawyers relying on Charter violations to obtain acquittals or withdraw of charges for their clients. The Charter is only one avenue of defence, however. Police procedure and police technology play an increasingly important role in properly defending a drinking driving case.
The evidence in criminal drunk driving cases usually cannot be collected and put in an evidence bag. The evidence is often the observations of police officers, occasionally civilian witnesses and the print out of a breathalyzer-type machine. This type of evidence inevitably contains frailties. It is the role of the skilled impaired driving lawyer to exploit the frailties, identify the disconnects and expose the useful evidence in court. As the law develops, this is where the rubber meets the road.
Finding the Right Lawyer for your Impaired Driving Case
Understanding the steps of a police impaired driving investigation is crucial. The lawyers in our office study police procedure and teach impaired driving defence to lawyers in Canada and the United States. We have been successfully defending impaired driving cases for well over 20 years and we have successfully defended hundreds of normal people like yourself.
Don’t let an impaired driving criminal charge ruin your life. Our very job is defending criminal impaired driving cases. We would be happy to be your lawyers for your impaired driving case.
Call us now for a quick discussion about your case. It may be the best call you ever make.
The Important Documents that Start the Case
The police arrest, detain and release people who are charged with criminal impaired driving / impaired operation of a conveyance offences. The person (the alleged driver) is given paperwork that begins the process of the criminal proceedings. Some of the papers deal with the criminal aspect and others with the Administrative Driving Prohibition. There may be an accident report, and various notices that are required by law to be served on the driver.
The most important papers are actual evidence in the case. These are the Certificates.
A Certificate of Qualified Operator is a document that record the evidence of breath test results. The Certificate of an Analyst provides evidentiary assurance that the substance used to check the reliability of the breath-test instrument (the Instrument) was properly tested and certified for use.
These documents, served as a copy, are essential evidence and should be kept in the best condition possible for your lawyer.
The documents that compel the driver to attend court is typically an Appearance Notice or Promise to Appear. These documents will let you know when you need to attend to be fingerprinted and photographed and when you must attend court.
Court – Going for the First Appearance
The police, when they release the person under investigation, usually tell them they must go to court on the date scheduled. This date is not a trial date. Moreover, your lawyer will usually attend for this date and explain to you why your lawyer does not want you to attend.
There are strategic reasons that make it appropriate not to attend court but to have your lawyer attend on your behalf. In most impaired driving cases, your lawyer attends for you and you do not attend court until your lawyer notifies you that you must attend.
The document that compels a court appearance begins the process. In British Columbia, a charge or charges are approved by the lawyer for the government, known as “Crown Counsel”. To start the process in court, Crown Counsel reviews the police report and approves a document called an “Information” which starts the court process. The Information is usually the first document your lawyer obtains in defence of your case.
Always preserve the documents that the police gave you. Once you have been released, it is appropriate to get a lawyer as soon as possible to develop a plan to handle your case. DO NOT speak to the police. Their job is to collect evidence that can them be used to prosecute you. Your lawyer has one job: to help you defend your case.
The Steps of an Impaired Driving Investigation
“Impaired operation of a conveyance” and “having a BAC at or over 80” may be the charges approved by Crown Counsel. This happens at the end of the investigation, however.
To properly defend and impaired driving case, you need to know the steps of an impaired driving investigation. The steps of a DUI investigation are taught to the police in the United States and they are commonly the concern of lawyers who defend DUI charges. It is not common for Canadian lawyers to use this analysis, which is a mistake in our view.
To fully understand the obligations of the police and the evidence that may be the subject matter of an impaired driving investigation, it is necessary to understand the steps of an impaired driving investigation. Kyla Lee, who has trained lawyers and police across North America, explains the steps of an impaired driving investigation in this video series.