Impaired Driving and Over 80
In 2008 the law on impaired driving changed dramatically making it much easier for the crown to prove these offences as the intoxilizer readings showing that a driver was over 80 was deemed to be accurate. In the last 5 years DUI defence lawyers have been trying to displace this presumption of the infallibility of this alcohol testing machine without any real success. In this writer's opinion there are now very limited defences to this type of charge. As defence lawyers we still have to look at the logs of the machine and calibration checks etc just to make sure that the crown material does not disclose a malfunctioning machine but it is in rare cases that our toxicologists will be able to show such malfunction. Below is a list of the defences that are still available and duable:
- Post driving alcohol consumption where the drinking occured after the driving and through a toxilogist report we are able to establish that the over 80 readings are attributable to the post driving consumption of alcohol and not any earlier drinking prior to driving.
- Charter of Rights breaches-failure to advise of the defendant's right to counsel or access to counsel, failure to caution a suspect of his right to silence, voluntariness and interpreter issues at the police station when the intoxilizer is administered.
- Very low readings namely 100 mg or under where with proper documentary evidence of hardship through suspension we may be able to persuade the crown to accept a plea to a lesser charge of careless driving.
- Failure to administer the roadside screening device which can then enable us to test the issue of whether the police had reasonable and probable grounds to arrest the driver for impaired driving.
- Failure to administer the roadside screening device to the driver promptly.
- The driving stopped and the circumstances suggest the vehicle is inoperable and there is defence evidence that the driver had no intention to drive and that the vehicle did not pose a danger to the public.
- Identification evidence isssues in cases where the alleged driver contends that he was not the driver at the material time.
These are just some of the defences available. There are others but this short analysis and case study does not permit greater details on other available defences.
Jack is in the ditch, will he ever get out!
Jack had gone to a party where he had consumed several bottles of beer. At about midnight he drove his vehicle home. As he approached his home he lost control of his vehicle as he was making a turn round a bend on the road and his vehicle landed in a ditch. He tried to remove his vehicle from the ditch but it was impossible as the tires were deep in mud. He got out of his vehicle and could see that the only way the vehicle could be removed from the ditch was by a tow truck. He called a tow truck company to remove his car from the ditch and told the company to tow his vehicle to his home which was 2 kilometres away. He had no intention to drive. Unfortunately before the tow truck arrived the police came on the scene and arrested Jack when he registered a fail on the roadside screening device. At the police station his reading on the intoxilizer was 115 mg.
Jack was released from the police station on a form 10 and he immediately called NLC Lawyers. We immediately set to work on building his defence after we went through the crown disclosure with him. We contacted the tow truck company that he had called and obtained a witness statement from the tow truck driver who confirmed Jack's story that he wanted his car to be towed to his home. We also called his mother confirming that Jack told her about the accident and that his vehicle would be towed home. He wanted to go to sleep as he was very tired and needed to go to work the following day. We also produced a letter from his employer about his work hours which the crown admitted into evidence.
At the trial we established during our cross-examination of the arresting officer that the vehicle was stuck in the ditch and although operable could not be moved out of the ditch. Furthermore the officer said that Jack's vehicle was completely in the ditch and did not pose a danger to other traffic on the road. Jack had been well prepared by NLC prior to giving his evidence and his story was credible. His story was confirmed by the tow truck driver and his mother gave evidence that Jack would not drive again that night and would be going to sleep as he had to work in the morning at 10.00 a.m..
Jack was acquitted as the trial judge had serious and reasonable doubts on the issue of whether the crown was able to prove that Jack intended to drive after his vehicle went into the ditch. NLC called all the necessary defence evidence that was required to achieve that result.
Documents do it all, Sunil's story
Sunil was routinely stopped at a RIDE campaign. He had 2 beers earlier with some friends. He thought his ability to drive was not impaired but nevetheless registered a fail on the roadside device. He was arrested and at the police station he gave a reading of 98 on the intoxilizer machine. Sunil was surprised at the reading indicating to the police that he only drank two 350 ml bottles of beer which he believed was 5% alcohol content 2 hours before his arrest. Unbeknown to Sunil at the time, NLC when we investigated the matter after we were retained discovered from his friends that the beer he drank was 7% alcohol content.
After Sunil retained us we went through the crown disclosure with him and advised him that with proper documentation we may be able to lessen the charge to one of careless driving which would avoid the huge hike in his insurance premium and result in an absolute driving prohibition and all the terrible things associated with a drink drive conviction.
We obtained letters from his friends concerning the alcohol content of the beer and when they drank it. We contacted his employer who wrote a very persuasive letter that Sunil was a construction site manager and needed to attend various sites in Ontario which made being able to drive a vehicle an essential part of his job. A letter form Sunil's ill mother confirmed that she relied on Sunil to drive her to a number of medical appointments. We also secured a letter from Sunil explaining his great remorse and his lack of judgment. We also secured a number of character reference letters from his temple and community that he was a good and religious man who did a lot of voluntary work for the community.
After we provided all the documents to the crown we were please to receive correspondence from them agreeing to lower the charge to careless driving with the only term being a driving prohibition for 6 months with the exception that Sunil could drive in connection with his employment and taking his mother to medical appointments.
Although there are the interlock provisions which permits driving after 3 months with the interlock machine installed if the driver pleads guily to over 80 or impaired driving within 3 months after the date of arrest - the cost of the interlock, the driving rehabilitation program that the driver must undergo and the substantial insurance premium hike would have cost him a substantial sum of money. Furthermore if he was convicted again of over 80/impaired he would go to jail for 30 days.
A careless driving charge was a sweet deal that NLC secured through proper investigation and diligently assembling relevant and persuasive documents to achieve the result.