Drinking and Driving Offences and Defences

drinking and driving offences

Over the years of my practice, I developed special expertise in defending my clients against various drinking and driving offenses.

How Serious Are Drinking and Driving Offenses?

Although they do not sound serious and many people mistake them for simple traffic violations, the offenses of impaired operation, ’80 over and refuse to provide a breath sample are criminal offenses with long-lasting negative consequences.  If found guilty of any of those crimes, at a minimum, a person acquires a criminal record, loses his driver’s license, and is ordered to pay a fine.  In addition, the car insurance premiums for people convicted of drinking and driving offenses may skyrocket for a long time following their conviction.

Due to the policy aimed at eradicating drunk driving and an overwhelming number of drinking and driving prosecutions, the government constantly tries to discourage the accused from pursuing their cases to trial by taking away defenses that were available to them before.  Some of the government’s initiatives in this regard were found unconstitutional in November of 2012 by the Supreme Court of Canada, however, the government continued to expand the punishing reach of the law with respect to impaired driving.

Recent Changes in The Law

In December 2018, the most recent amendments made it a crime to be over the legal limit within two hours after ceasing to operate a motor vehicle unless an accused reasonably believed he or she will not be subjected to testing.  In addition, due to the most recent amendments to sentencing provisions, a permanent resident of Canada or a foreign national convicted of these offenses is also subject to removal from Canada.

So Should I Plead or Should I Fight?

Notwithstanding the serious consequences listed above, people charged with the drinking and driving offenses are still pressured into early (and often ill-informed) guilty pleas by the prospect of regaining their driver’s license sooner.  It works like this: under the Criminal Code, for the first conviction, the accused loses his driver license for a minimum of one year, however, if you plead guilty within the first 90 days after the date of the offense and if the Court and Crown Attorney do not oppose it, you can lose your license for three months and the remaining nine months you can drive as long as you enroll into the Interlock Program administered by the Ministry of Transportation which involves, among other things, an installation of special interlocking ignition device on any motor vehicle you drive which prevents you from starting the engine unless you have no alcohol in your system.  I see many problems with this approach including the following:

  1. The ultimate decision as to whether or not you are admitted into the Interlock Program is not up to the judge or the prosecutor and definitely not up to you, the decision is made by the Ministry of Transportation after you enter your guilty plea;
  2. Once you plead guilty, you get a criminal record;
  3. Oftentimes you simply do not have time to properly assess your chances at trial because the materials required for your lawyer to properly advise you in this regard are simply not available within 90 days after the date of the offense.  I had a case, for example, where my client was charged in August but his case first got to Court only in October and then no video recording made of him at the police station (showing whether he looked impaired) was not available until after the expiration of the 90 day period;
  4. Even though you get your license sooner, you may still be unable to drive because your insurance premiums are so high that you simply cannot afford this luxury;
  5. As noted above, depending on your immigration status, a drinking and driving conviction may result in your removal from this country.

On the other hand, if you take your case to trial, the advantages include the following:

  1. With the assistance of an experienced impaired driving lawyer you can beat the charges;
  2. Even if you do not succeed at the end of the day, the new legislation still allows you to get your license back sooner than one year only in this case you cannot drive for six months and then can drive with an interlocking device for twelve months (versus three and nine months in case of a guilty plea).

As you can see the incentive to plead guilty is not as compelling as the government would want you to think.  In my opinion, in the current state of affairs, it makes more sense to take your case to trial than plead guilty.  However, if you want to fight the drinking and driving charges, you need a lawyer specializing in this area of criminal law to have a fighting chance.

How Can I Fight The Charges?

The drinking and driving offenses are indeed very complex and not all criminal lawyers even take them on.  The defenses are there but many of them are very technical and there are literally tons of precedents (previous court decisions) that may or may not be applicable depending on the specific fact scenario of your particular case.  I usually walk into a courtroom armed with a briefcase full of different precedents which can be relied upon to advance one type of argument or another depending on how the evidence comes out at trial.

The police use different types of breath testing instruments to gather evidence of concentration in blood.  The officer’s lack of knowledge or improper operation of breath testing device may afford you a defense and in order to challenge the officer on these issues, the experienced impaired driving lawyer must himself have sufficient knowledge and understanding of the workings of this equipment.

A lot of impaired driving cases are dismissed based not on the merits but on constitutional violations which occur in the course of interaction between the police and individual accused.  Not surprisingly, a lot of famous Charter of Rights decisions which established general constitutional principles involved drinking and driving offenses.

In some other cases, your impaired driving lawyer has to engage a toxicologist who may provide expert evidence on your behalf to establish your defense.

In short, a good impaired driving lawyer has to possess specialized knowledge of issues specific to impaired driving cases and also must have deep knowledge of the Charter jurisprudence.

One thing is for sure – “charged” does not necessarily mean “convicted” in many impaired driving cases as long as you have an experienced impaired driving lawyer by your side.