Want to defend your impaired driving or DUI charge? Here are the top 5 possible Ontario impaired driving defences: recent drinking, rights to counsel, timing is everything, Askov- a delay argument and prove it.
Recent Drinking: This may give rise to two possible defences. First, if the officer has any grounds to believe that you have consumed alcohol within 15 minutes before you are asked to provide a roadside breath sample, the sample taken in those circumstances is not valid. Second, is the last drink defence or post-offence drinking defence. If you consumed alcohol within 15 minutes before you were stopped, or the police came upon you, or if you drank after you drove this can provide some defence. It is important that you determine if you had anything to drink recently before you were stopped or spoke with police.
Rights to Counsel: Under the Canadian Charter of Rights and Freedoms you have the right to be informed by the police upon your detention of your right to counsel. They must inform you of your rights at the correct time, and offer you an opportunity to speak with a lawyer, often a particular lawyer, within a reasonable amount of time. If you request a specific lawyer they must take reasonable steps to put you in contact with that person.
Timing is Everything: There may be a defence based on various circumstances regarding the timing in which events following your detention occur. For example, the police should take an Intoxilyzer breath sample at the police station as soon as practicable – which is not the same as soon as possible. Roadside samples must be taken almost immediately; therefore a delay may result in a defence.
Askov- A Delay Argument: A delay of 10 or more months, for which the Crown Attorney, or Court are responsible, may be a defence in itself. This does not include the sorts of inherent delays that occur in all cases, such those caused by waiting to receive the disclosure or completing initial meetings with the Crown, or delays caused on the accused’s behalf in certain circumstance. Therefore, it is important that you retain us quickly so that we have the opportunity to create pressure from the beginning. In a case where this defence applies, it forms an absolute defence to all charges. While it is essential to be 100% truthful and fair in the evidence that you provide, to your lawyer, the Crown Attorney and the Judge hearing your case, you should also note any prejudice you have suffered because of the delays.
Prove It: This defence defines itself. The onus rests on the Crown to prove its case beyond a reasonable doubt. There are many technicalities with regard to different cases, especially in drinking and driving cases. For example, the roadside screening device must be calibrated every 14 days, while the machines at the station must be calibrated every 7 days. If they are not, then their reliability diminishes, and this can afford a defence. Another example is the requirement of the police to have reasonable and probable grounds to make an arrest in order to justify your detention. Further, they must have these reasonable and probable grounds in order to make a breath demand and take your breath samples at the station. If they do not, then the Judge may find that the Crown has not proven its case.