Impaired Driving DUI Over 80

DUI & Impaired Driving Defense Lawyer

Any time you are questioned by the police, you have a right to seek to a lawyer or an interpreter if English is not your first language. You must exercise this right at all times, whether it is at the side of your car, in the police cruiser or at the police station. Your right to speak to a lawyer is your choice and fundamental right and never give this up this right.

Often, people try to explain what happened hoping that the police will let them go or give them sympathy. This is absolutely the wrong approach to take. The police have a duty to investigate and lay charges. They are not there to give you sympathy. The more you talk, the easier you make their jobs and the harder it becomes to defend you later at trial. If you are in any doubt about how to approach your situation, contact a lawyer or attorney to advise you on how to proceed.

Impaired Driving

This offence includes the operation or care or control of a motor vehicle, vessel, or aircraft while one’s ability to operate is impaired by alcohol or a drug (including marijuana and other pharmaceuticals).

If the evidence of impairment is so weak as to leave the trial judge with a reasonable doubt as to impairment, the accused must be found not guilty. Although, this is not always a guarantee, as there are several factors that may be used in court in order to prove impairment.

Some of the factors that the Crown will mention in an attempt to prove impairment are as follows:

• Bad driving.
• The odor of alcohol coming from the accused.
• Red glassy, watery or bloodshot eyes and/or dilated pupils.
• Slurred speech.
• Flushed complexion.
• Unsteady on feet.
• Difficulty in producing documents.

However, these “facts” can have other logical and reasonable inferences. Here are some examples:

• An unusual pattern of driving may be caused by vehicle (mechanical) defect, road conditions, or the driver may have been momentarily distracted.
• The odor of alcohol is consistent with its recent consumption but is not necessarily indicative of impairment. (Just because a person has been drinking, that doesn’t mean that he or she is impaired). The odor of alcohol may also be coming from somewhere other than breath (for example if alcohol was spilled on a person’s clothing).
• Glassy, watery and bloodshot eyes are consistent with being over-tired, being in a smoky room, or many other causes.
• Slurred speech may be caused by reasons other than impairment such as dental or medical problems.
• Unsteadiness or lack of balance might be caused by footwear, medical conditions, or the condition of the surface that the person is walking on.
• Difficulty producing documents can be caused by nervousness (some people get nervous when stopped and questioned by police).

Driving Over 0.08% BAC

Driving over .08 (over 80) refers to the amount of alcohol in your blood. If the level of alcohol in your blood was greater than 80 milligrams of alcohol in 100 milliliters of blood at the time of driving, then the charge can be and will be proved.

A person may be convicted of impaired driving if their blood alcohol level is over the legal limit of 0.08%, even if they appear sober. In fact, most alcoholics show little or no signs of impairment. Driving over 0.08% is a technical and complicated area of law, and the police and the prosecution must follow a strict set of procedures in order to have proof of a breath/blood test admitted into evidence.

Reasonable Grounds for the Breath/Blood Test

To start with, think of the breath/blood test as a police search. The only difference is, instead of the police searching your house (for example), they are searching your blood for evidence of alcohol. The method of the search is through a breath or blood test.

But before the police can conduct a lawful search, they need to have the proper grounds to do so. The police can’t just walk into your house, and they can’t demand a sample of your breath or blood without reasonable and probable grounds. The police must respect the responsibilities placed on them by the Charter of Rights, which protects all citizens from unreasonable search and seizure.

The judge will hear the evidence surrounding the circumstances, which led up to the breath/blood test, and will determine whether the police had the required grounds to demand the sample. In some cases, the judge will determine that the grounds did not exist, and the breath test results will not be admitted.

The criminal code sets out a strict procedure that the police must follow when making a demand and taking a breath/blood sample. If the procedure is not followed, the test results may be excluded from evidence.

The results of the breath test are not always accurate.

• The police officer conducting the test may have made an error.
• The machine itself may be improperly maintained, producing erroneous results.
• The amount of alcohol you drank (before or after driving) may not have resulted in a blood alcohol concentration that was over the legal limit (this is called “bolus drinking”).
• Your blood alcohol reading may be over the limit at the time you provided the sample, but under the limit at the time you were driving.

Evidence, which contradicts the results of the breath/blood test, is commonly referred to as “evidence to the contrary.”

Refusal to Provide Samples

The charge of “refusal” arises when a person, without reasonable excuse, fails or refuses to comply with a lawful breath or blood demand made to him by a peace officer. The penalties for this charge are as severe, and in some cases more so, as for impaired driving or driving over .08.

The charge can arise if you fail to comply with a demand for either a roadside screening device test, or for failing comply with a demand for a breath sample at the police station. The penalties for this charge are as severe, and in some cases more so, as for impaired driving or driving over 0.08% BAC.

While it may seem as though a charge of refusing to comply with a breath demand is straight forward, it is not. The circumstances surrounding the making of the demand must be examined to determine if the demand was legal, or if there was some other reasonable excuse for failing to comply with the demand.

Can the Machine Be Wrong?

Definitely. Breath testing equipment can produce false positive readings. For example:

• Human error can be a major factor if the device is not properly used.
• The testing device may not have been properly maintained and calibrated.
• Your individual characteristics regarding alcohol absorption and elimination rates may be different from the norm.
  • Testing equipment doesn’t take this into account. A toxicologist expert would have to be retained to provide a report on your personal characteristics versus the readings provided by the machine.
• The timing of the breath test may not be a true reading of your blood alcohol level the time you were operating a vehicle.
  • Most breath tests are taken some time after the person has been stopped driving and has been taken to the police station. The legal question is what your blood alcohol level at the time of driving, not your BAC at the police station when you provide your breath or blood sample.
• Your blood alcohol level could have been under 0.08%, even by a small percentage, when you were driving, but over the limit when you arrive at the police station.

Penalties

Alcohol-impaired

• Charge:
  • Alcohol-impaired driving
  • Having a Blood Alcohol Concentration (BAC) at or over 80mg per 100ml of blood within 2 hours of driving
• Penalty:
  • 1st offence: Mandatory minimum $1000 fine; Maximum 10 years imprisonment
  • 2nd offence: Mandatory minimum 30 days imprisonment; Maximum 10 years imprisonment
  • 3rd offence: Mandatory minimum 120 days imprisonment; Maximum 10 years imprisonment

Drug-impaired

• Charge:
  • Drug-impaired driving
  • Having 5ng or more of THC per ml of blood within 2 hours of driving
  • Any detectable level of LSD, psilocybin, psilocin, ketamine, PCP, cocaine, methamphetamine, 6-mam within 2 hours of driving
  • Having 5mg or more of GHB per 1 litre of blood within 2 hours of driving
• Penalty:
  • 1st offence: Mandatory minimum $1000 fine; Maximum 10 years imprisonment
  • 2nd offence: Mandatory minimum 30 days imprisonment; Maximum 10 years imprisonment
  • 3rd offence: Mandatory minimum 120 days imprisonment; Maximum 10 years imprisonment

Combination

• Charge: Having a BAC of 50mg per 100ml of blood + 2.5ng or more of THC per 1ml of blood within 2 hours of driving
• Penalty:
  • 1st offence: Mandatory minimum $1000 fine; Maximum 10 years imprisonment
  • 2nd offence: Mandatory minimum 30 days imprisonment; Maximum 10 years imprisonment
  • 3rd offence: Mandatory minimum 120 days imprisonment; Maximum 10 years imprisonment

Charge: Refusal to comply with demand for sample

• Penalty:
  • 1st offence: Mandatory minimum $2000 fine
  • 2nd offence: Mandatory minimum 30 days imprisonment; Maximum 10 years imprisonment
  • 3rd offence: Mandatory minimum 120 days imprisonment; Maximum 10 years imprisonment

Drug-impaired driving – Summary conviction

• Charge: Having over 2ng but less than 5ng of THC per ml of blood within 2 hours of driving
• Penalty: Maximum $1000 fine

Charge: Impaired driving causing bodily harm

• Penalty:
  • Summary conviction: maximum 2 years imprisonment less a day
  • Indictment: maximum 14 years imprisonment

Charge: Impaired driving causing death

• Penalty:
  • Indictment: Maximum life imprisonment

Charge: 1st offence + BAC of 80-119 ml

• Penalty: mandatory minimum $1000 fine

Charge: 1st offence + BAC of 120-159ml

• Penalty: mandatory minimum $1500 fine

Charge: 1st offence + BAC of 160 mg or more

• Penalty: mandatory minimum $2000 fine

Important Factors to Remember After Facing an Impaired Driving Charge

IMPORTANT: Driving prohibitions apply 24 hours a day, seven days a week throughout Canada. The court-imposed (Federal) driving prohibition runs concurrently with the Provincial license suspension. The Province may suspend your license for an even longer period than the court-imposed prohibition. While prohibitions and suspensions normally commence upon conviction, it is possible that the Province, prior to you going to trial, may suspend your license.

Car Insurance Rates Increase

Motor vehicle insurance rates often skyrocket after an impaired driving conviction. Many times, only a high-risk insurance company, charging double the normal rates, will insure a convicted impaired driver.

Ignition Interlock Monitoring

You will have to install an ignition interlock system in any car you wish to operate. An ignition interlock device is an in-car alcohol breath screening device that prevents a vehicle from starting if it detects a blood alcohol concentration (BAC) over a pre-set limit of .02 (i.e., 20 mg of alcohol per 100 ml of blood). The device is located inside the vehicle, near the driver’s seat, and is connected to the engine’s ignition system.

Everyone who commits an impaired driving offence on or after December 23, 2001, and is subsequently convicted, must have the ignition interlock device installed after their license is reinstated if they want to drive. To have their driver’s license reinstated, they must first complete the mandatory suspension period and all other licensing requirements including the Remedial Measures Program (assessment, education or treatment and follow-up).

The device is installed for the ignition interlock condition period. It must be used by anyone who drives the vehicle, including family and friends. Offenders can choose not to drive until the ignition interlock condition is removed from their license.

Drivers subject to an ignition interlock condition are responsible for all installation and maintenance costs for the device.

Legislation on Civil Remedies (Ontario)

Ontario has passed new legislation for keeping Ontario’s roads and families safe from people who repeatedly choose to drink and drive (2008). The new law allows the civil courts, at the request of the Attorney General, to impound and forfeit a vehicle, if the court finds:

• That the vehicle was involved in, or is likely to be involved in, a drinking and driving offence;
• And if the vehicle is owned or driven by a person whose driver’s licence has been suspended for a drinking and driving offence two or more times in the preceding 10 years;

Victims of the activity which resulted in the forfeiture may apply for compensation from the proceeds of sale. The new amendments to the Civil Remedies Act, 2001, were introduced in the Safer Roads for a Safer Ontario Act, 2007, and target vehicles used by people who repeatedly drink and drive.

Drivers who are found guilty of driving while their licence is suspended for a Criminal Code conviction will have the vehicle they are driving impounded and the driver will face fines from $5,000 – $50,000 under the Highway Traffic Act.

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