Driving offences occur frequently throughout the province daily. Depending on the offence committed, the corresponding charge may impose a harsh punishment. Charges related to driving under the influence (“DUI”) of drugs or alcohol are commonly accompanied by potentially life-changing consequences. While DUI offences can seem straightforward, various technical aspects may provide a basis to challenge the Crown’s evidence, and several defences may be available to the individual who has been charged.
This blog post will provide an overview of an impaired driving charge, an “Over 80” charge, a failure or refusal to provide a breath or blood sample, and their potential outcomes. Additionally, this blog will explore what can go wrong when evidence is collected relating to these charges and how that may impact your rights.
Driving while impaired can result in personal injury, property damage, and death. It is important to note that under section 320.14(1) of the Criminal Code of Canada, an individual commits an offence of driving under the influence if they operate a vehicle while their ability to operate it is impaired to any degree due to drugs and/or alcohol.
An individual may be charged with impaired driving regardless of whether the vehicle was in motion when the offence occurred. Simply being inside the vehicle while impaired and having the ability to be in care and control of the vehicle is sufficient to warrant a conviction for an impaired driving offence. Even if the individual did not intend to drive or was trying to “sleep it off” in their vehicle, they may still be charged for impaired driving based on the mere ability to drive and posing a risk to the public.
Under section 320.14(1)(b), a person may be charged with “Over 80” if they provide a breath or blood sample test which shows that they have a blood-alcohol level of over 80 milligrams of alcohol per 100 millilitres of blood while operating a vehicle. A person may be charged with “Over 80” regardless of whether they appear to be impaired at the time of the offence.
Unlike an “Over 80” charge, a charge for impaired driving does not need to be based on the results of a breath or blood sample. Instead, an individual may be charged with impaired driving due to a police officer’s observation of their inability to pass a sobriety test or based on the presence of drugs and/or alcohol in their vehicle.
An individual’s failure, or refusal, to provide a breath or blood sample following a police officer’s request constitutes an offence. Those charged under this offence may face the same penalties as impaired driving or an “Over 80” charge.
A conviction of a charge of driving under the influence (“DUI”) can result in substantial consequences. These types of offences are accompanied by mandatory minimum penalties, which must be imposed once a conviction has been made. For instance:
- A first DUI offence carries a $1,000 fine;
- A second DUI offence carries 30 days imprisonment; and
- A third DUI offence carries 120 days imprisonment.
In addition to the mandatory minimum penalties, a conviction for a DUI will result in license suspension for a minimum of one year. The suspension will be lifted once various requirements are met, for example, until fines have been paid or an interlock device has been installed in your vehicle.
Aside from financial penalties and/or a jail sentence, a DUI conviction may impact various other aspects of your life. For instance, the conviction will remain on your criminal record, which could impact future employment or volunteer opportunities. Further, a driving offence may negatively impact your existing employment if your job requires you to drive. Additional fees may also be associated with license reinstatement, and your vehicle insurance rates may substantially increase.
Under certain circumstances, for instance, in an “Over 80” charge, a police officer has the statutory authority to obtain a breath or blood sample from a driver. The Criminal Code provides that if a police officer has reasonable grounds to believe that a driver has operated a vehicle while impaired, a breath sample may be demanded to determine the driver’s blood-alcohol level using a breathalyzer.
Alternatively, suppose the policeman has reasonable grounds to believe that the driver may not provide a breath sample or it may be impractical. In that case, a blood sample taken by a qualified technician may be demanded. This may occur when the suspected impaired driver has been involved in a motor vehicle accident and has sustained injuries. However, blood sample cases can become complex, and police officers must abide by strict rules to obtain a blood sample legally. Therefore, charges relying on blood samples may have increased chances of mistakes having occurred which give rise to potential defences for the accused.
If a breathalyzer or blood sample evidence has been obtained improperly, the accused may be provided with a defence. There are several requirements that a police officer must comply with when obtaining breathalyzer evidence, which include taking the breath sample within the prescribed time limit, properly serving notice on the accused and reporting to the court.
Due to the infrequent use of blood sample collection for DUI charges, some police officers may need to familiarize themselves with the rigid requirements relating to such samples, which may increase the likelihood of an accused raising a Canadian Charter of Rights and Freedoms infringement argument. Depending on the circumstances of the investigation and the severity of the Charter infringement, among other factors, a defendant may be able to argue that the blood sample and any related analysis should be excluded from evidence at trial. Without these key pieces of information, insufficient evidence may warrant a conviction.
Some examples of common issues that arise in cases of blood sample collection and investigation include:
- A police officer’s failure to determine whether it is impractical to obtain a breath sample or whether a driver is incapable of doing so;
- Failure to obtain a blood sample in the approved container; and
- Infringing on an individual’s Charter rights while obtaining a blood sample and later attempting to obtain a blood sample through an alternative means by way of a warrant.
Contact the Criminal Defence Lawyers at Hicks Adams for Trusted Advice on Defending and Appealing Drug Charges
Being convicted of a driving charge can result in life-altering consequences. If you have been charged with a driving offence, such as a care and control charge, the experienced criminal defence lawyers at Hicks Adams will help you understand your rights and ensure they remain protected. We offer comprehensive criminal defence services, including charges related to weapons offences, assault, and murder. We work to ensure that our clients are protected against unlawful convictions and are positioned for the best possible outcome. With offices in downtown Toronto, our firm represents clients throughout Ontario before all levels of court. To schedule a confidential consultation to discuss your driving charges, contact us online or call us at 975-1700 (toll-free at 1-877-975-1700).