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If you have been charged with impaired driving, driving while your blood/alcohol content is over the legal limit (‘over 80’), or failing or refusing to provide a breath sample, your priority is to be found not guilty in Court.
The first thing you can do to increase your chances of being found not guilty is to consult and hire a lawyer with experience defending impaired driving charges. We offer a free, no obligation, consultation.
During the free consultation, we can explain the Court process to you, and depending on how much information you can provide, identify potential defences in your case. We also use the information you provide us to begin developing a defence strategy for your case.
Write a detailed synopsis
We begin developing a defence strategy for your case at our first meeting. The more information you can provide us to develop a strategy the better.
The second thing you can do to increase your chances of being found not guilty is to write a detailed synopsis of how you remember the incident occurring. It may be in your best interest to testify at your trial, and you do not want to forget any details that may assist with your defence.
When writing your detailed synopsis, it is helpful to list everything chronologically. Start with the very first thing you remember, and write down every detail about that thing before moving on to the next thing you remember happening.
Your defence may be bolstered by evidence. This evidence may include your testimony. Since your trial will be at least several months from the date of the incident, it is very helpful to record your recollection of what happened to refresh your memory in the future by writing a detailed synopsis.
Some defences can be supported by additional evidence. For example, if you are charged with failing or refusing to provide breath sample and believe you had a reasonable excuse for failing or refusing to do so, medical records may be able to support your reasonable excuse. If you were charged with having care and control of a motor vehicle while impaired, and you believe there was no realistic risk of danger because your intent was not to drive the vehicle, evidence to support your intent may exist in the form of text messages.
Identifying what evidence to preserve is difficult. One reason why you should consult a lawyer as soon as possible is to get a lawyer’s advice on what evidence should be collected before this evidence is no longer available. We can help you do this during a free consultation.
Develop a defence strategy
Impaired driving is one of the most heavily-litigated and complicated areas of the criminal law, and entire book series are written on the legal defences available. Many criminal lawyers who are not experienced in impaired driving law do not take impaired driving cases because it is so complicated. What this means is;
(1) there are many defences available, and
(2) you should consult a professional to identify these defences.
Developing a defence strategy is something that we do in conjunction with you. It starts from our very first meeting, and will be implemented in Court, at your trial, and during our negotiations with the Crown Prosecutor.
You will probably only have one chance at trial, so you do not want to miss arguments that may exist in your case. You wouldn’t attempt flying your own passenger jet, or doing your own surgery, don’t leave your trial to an amateur. Consult a professional.
Impaired driving – Common Defences
Determining whether you have a defence requires a thorough assessment of the Crown disclosure (the police’s evidence against you), your side of the story, and the law. This is where the expertise provided by an experienced impaired-driving criminal defence lawyer becomes invaluable. Often we can determine whether you have a potential defence at our very first meeting, which is free, depending on how much information is available.
The following is a short list of the most common defences to impaired driving, it is by no means an exhaustive list:
A Charter defence
If your charge involved police taking breath samples from you, then police are considered to have seized bodily samples from your person. To lawfully seize breath samples from you, police must satisfy a number of legal thresholds. If police are found to have failed to satisfy any of these legal thresholds, they will have violated your rights under the Charter of Rights and Freedoms and evidence can be excluded from your trial.
For example, to take a breath sample from you at the roadside, police must have ‘a reasonable suspicion that you have alcohol in your body’. To take breath samples from you at the police station, police must have ‘reasonable grounds to believe’ you are impaired by alcohol or that you are driving with a prohibited blood/alcohol content. In addition, before taking those samples, you must be given a reasonable opportunity to contact a lawyer and be informed of that right. If the police failed to comply with these obligations, they may have violated your rights under the Charter of Rights and Freedoms. If your rights have been violated, evidence can be excluded, such as observations of impairment, or the breath samples.
To be found guilty of impaired driving or driving with a prohibited blood/alcohol content, two things must be proven:
(1) you were impaired or had a prohibited blood alcohol content, and
(2) you were driving.
In many situations, police arrive on the scene and you are outside of your vehicle. To prove you are guilty, the Crown must then rely on witness testimony identifying you as the driver or a confession you made to police.
The aftermath of a traffic collision often involves a series of fast-paced and stressful series of events. During this time, witnesses may jump to conclusions without actually considering whether they say you driving, and whether they can identify you months later in Court. If there is a lack of evidence that you were driving or unreliable evidence that you were driving, the Crown Prosecutor may be unable to prove the charge against you in Court.
No proof of impairment
To be found guilty of impaired driving, it must be proven that:
(1) your ability to operate a motor vehicle was impaired, and
(2) you were impaired by alcohol or a drug.
Impairment by alcohol or a drug means that your cognitive ability and motor skills hindered by the effects of alcohol or a drug. This impairment must impair your ability to operate a motor vehicle to be criminal, not play chess, run a marathon, or complete any number of other demanding tasks. It must also be caused by alcohol or a drug to be criminal, not by fatigue, stress, weather, or any other conditions.
To prove that you were impaired, police observe you and record indicia (observations that indicate) that you were impaired. If not enough indicia are present, the Crown prosecutor may be unable to prove you were impaired beyond a reasonable doubt.
No realistic risk of danger
Not only is it a criminal offence to drive while impaired, it is also a criminal offence to be in care and control of a motor vehicle while impaired or with a prohibited blood/alcohol content. If you are sitting in the driver’s seat of a motor vehicle, the Criminal Code presumes that you are in care and control of that vehicle. However, the Supreme Court has held that to be convicted of that offence, it must be proven that there was a ‘realistic risk of danger’ – ie. a reasonable risk that you would drive the car.
Your testimony may be critical in proving that your intent was not to drive and there was no realistic risk of danger. Evidence to support your intent may exist in the form of text messages, you should take steps to preserve these text messages and be prepared to review them when you consult a lawyer. You should also book a free consultation as soon as possible so we can assist you what evidence should be preserved.
A reasonable excuse
If you have been charged with failing or refusing to provide a breath sample, you may have a reasonable excuse for doing so. A reasonable excuse is a legal defence for this charge. A reasonable excuse can include a medical reason for being unable to provide a sample or a breach of your Charter rights.
A reasonable excuse is a type of defence that will almost certainly require you to present evidence in the form of your own testimony, or in the form of medical records. If you believe your testimony may be able to support your reasonable excuse, you should write a detailed synopsis of the incident as soon as possible. If you believe medical records may be able to support your reasonable excuse, you should take steps to get these medical records as soon as possible. You should also book a free consultation as soon as possible so we can assist you what evidence should be preserved.