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.

Recent Successes With Impaired Driving Charges

Acquittal – Operation of Motor Vehicle While Impaired by Alcohol (Case Study)

Sometime very early one mid-August morning, the Ministry of Transportation cameras capture a scene of a male talking on his cell phone sitting on the grass beside a vehicle in the ditch on the shoulder of Highway 401. A witness had reported seeing a car that had been in an accident. Ambulance and police were dispatched to a personal injury single motor vehicle collision. When police arrived they found a young man fitting the description from the camera footage. The young man said he that he had fallen asleep on his way home from his girlfriend’s. He did not need the ambulance. The police, believing that they observed signs of intoxication, demanded that he give a breath sample into the roadside alcohol screening device. He did so and registered a “fail.” He was arrested. The handcuffs that they put on him were tight and hurt his wrists. Later at the police station, he gave a breath sample into the device there and registered a blood alcohol level above the legal limit. The police charged him with impaired driving and with “Over 80.”
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Acquittal – Care or Control While Impaired and Over 80 (Case Study)

Mr. H. Was found sitting in the driver's seat with his head slumped to one side. He appeared to be sleeping or passed out. The keys were in the ignition and the vehicle was not running but the ignition was switched on. The officer spoke to Mr. H. and asked him to exit the vehicle. Once outside, the officer noted an odour of alcohol on Mr. H.’s breath.
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Acquittal – Impaired and Over 80 (Case Study)

The officer formed a suspicion that Mr. T. had alcohol in his body and told him that he would require him to give a screening sample of his breath. The officer then went off to find a roadside breath screening device.
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Acquittal – Care or Control Over 80 (Case Study)

In the very early, dark hours of a winter’s morning, a white Toyota crashed into a hydro pole, then into a mattress and box spring that had been left on the curb, and then a second hydro pole. Debris was scattered all over the road and the lawns of the nearby houses. The mattress was halfway up a tree. Another driver witnessed the Toyota hit and wrap around the second hydro pole.
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Impaired, Over 80 & Novice Driver BAC Over 0 (Case Study)

About an hour after dawn on a clear, dry Sunday morning in May, in the heart of Muskoka, police were dispatched to a vehicle roll over. They arrived at the scene to find the vehicle on its roof. The driver Mr. N. and his passenger were standing nearby as was a bystander. Mr. N. was 20 years old and was in cottage country for a weekend away with a buddy. The officer questioned Mr. N. who reported swerving to avoid a rabbit. The officer then questioned him on his recent alcohol consumption and Mr. N. admitted to drinking the night before, approximately five hours prior. The officer therefore demanded that Mr. N. give a breath sample into the roadside breath screening device. He provided a breath sample, registered a “fail” and accordingly was arrested for having over 80 mg of alcohol per 100 ml of blood – a criminal offence.
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Acquittal – Impaired and Over 80

Two civilian witnesses came upon Mr. M.’s vehicle immobilized in a ditch with two wheels off the ground. They stopped to assist and believed that Mr. M., who was in the driver’s seat, was intoxicated. They called 911. The police officer who arrived at the scene arrested Mr. M. for Impaired Operation of that vehicle.
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Guilty of Failing to Yield – Not Over 80mg (Case Study)

Counsellor Nadarajah centred her focus on three main charter arguments: (i) that the demand for Mr. T. to provide a sample into an approved screening device did not follow forthwith from the officer forming the suspicion that Mr. T. had alcohol in his body and thus breached sections eight and nine of the Canadian Charter of Rights and Freedoms. (ii) that the arresting officer’s failure to establish a firm time of Mr. T.’s last driving rendered both his ASD and Intoxilyzer demands invalid, thus also breaching both sections eight and nine of the Charter. (iii) that Mr. T. was not provided with his rights to counsel or the opportunity to exercise them prior to complying with the ASD demand when circumstances dictated that he should have been, amounting to a breach of section 10(b) of the Charter.
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Appeal – Rights Violated (Case Study)

Mr. J. was a 22 year old Canadian student entering into his 4th year of university in the United States on a golf scholarship. After attending a party in Toronto, he was stopped by the police and arrested for driving with over 80mg of alcohol in 100ml of blood (over 80).
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Over 80 – Police Misconduct (Case Study)

Ms. M. had been at a local bar having a few drinks with a friend of hers. As a result of being sexually harassed by a fellow patron (a tow truck driver), our client left the bar and drove to McDonald's for a snack. The tow truck driver followed her out, and called the police to report a possible DUI. The reality is that the tow truck driver was hoping that our client would be arrested so he could tow the car and impound it for seven (7) days - perhaps earning $1,000 in the process.
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Careless Driving Instead of Impaired Driving & Over 80mg (Case Study)

Mr. N. is a military teacher who had generally demonstrated a high degree of responsibility in our community. As so many before him, Mr. N. had a momentary lapse in his judgment and decided to get behind the wheel of a motor vehicle after having a few too many drinks. The arresting officer noted that he had witnessed Mr. N.’s vehicle cross the centre line on several occasions and briefly drive south in a northbound lane. Upon the review of Mr. N.’s disclosure package, as provided to defence counsel by the Crown, Mr. Aitken identified multiple Charter breaches. While the matter was set for a four hour trial, the trial itself never began as a result of the Crown making a deal with Mr. Aitken and Mr. N. to a plea of guilty to a lesser charge.
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Over 80mg – Stay of Proceedings (Case Study)

Ms. B. had just recently arrived back to Canada. Her plane had only just landed not long before she was stopped by the Ontario R.I.D.E. program as she drove home from the airport. She explained to the officer that she was feeling jetlagged but the officer could smell an odour of alcohol coming from her breath. She was placed under arrest after failing the approved screening device test.
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Care & Control and Over 80 Acquittal (Case Study)

Mr. G. had been watching the CFL Grey Cup while he hung out with a few of his friends on the night of Sunday November 25 to Monday November 26, 2014. At the time, he was facing a serious financial burden as he was supporting his new, young family. After entering the car with his friends, he turned towards the street from the parking garage but shortly made an additional turn to return to the parking garage. An officer, who was located across the street, grew suspicious that he should be entering the vehicle so late on a Sunday night / early Monday morning on Grey Cup day and decided to investigate.
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Acquittal – Impaired by Drugs and Dangerous Operation (Case Study)

Mr. B is quite a presentable man but was struggling through some difficult times. He wanted to get a routine medical examination done but possesses a great phobia when a physicians use needles. Ultimately, there was miscommunication between the doctor, pharmacist and our client, which resulted in Mr. B. taking far more Ativan anti-depressants than a normal person should take, given the nature of the drug. Following this mishap regarding our client being advised to take an incorrect dosage of Ativan, the Durham Regional Police Service stopped Mr. B.'s vehicle as a result of erratic driving but, fortunately, before any accidents had occurred.
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