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Toronto criminal DUI, impaired driving and over .08 lawyer

Toronto DUI Lawyer

DUI, impaired driving, and “Over 80” charges affect individuals of all walks of life. Having one extra glass of wine at dinner can result in a criminal conviction, the loss of your driver’s license, and having to pay thousands of dollars in higher insurance premiums. Courts, the Prosecution and society as a whole take drinking and driving cases very seriously. This has resulted in very severe penalties for those convicted of drinking and driving. In light of the potential consequences stemming from an impaired driving conviction, it is very important to choose the right criminal lawyer. Brian Weingarten is a Toronto DUI lawyer with a thorough understanding of the technical requirements and defences to impaired driving charges. Brian will thoroughly review your matter, and will advance all possible defences to the charges.

What DUI and Impaired Driving Offences are Found Within the Criminal Code?

The Criminal Code creates a number of impaired driving related offences. These include:

  • Driving while impaired by alcohol;
  • Driving while impaired by a drug (prescription or illegal);
  • Operating a vehicle with an alcohol concentration over 80 milligrams in 100 milliliters of blood (Over .08);
  • Refuse to provide a breath sample.

What Does the Crown Have to Prove to Secure an Impaired Driving Conviction?

In order to be convicted for operating a vehicle while impaired by alcohol, the Crown must prove that the accused: 1) had care or control over the vehicle; 2) his or her ability to operate the vehicle was impaired by alcohol or a drug.

Care or control does not necessarily mean that the accused actually drove or attempted to drive the vehicle. Caselaw has established that care or control involves the accused performing some act involving the vehicle or its fittings and creating a realistic risk of danger to persons or property.

The threshold for establishing impaired driving is quite low. Caselaw has held that a conviction for impaired driving may follow where the accused’s driving was impaired, even to the slightest degree by alcohol. If the accused’s driving can be explained by fatigue as well as alcohol consumption, he or she can still be convicted of impaired driving.

My Breath Test Readings Were “Over .08,” Shouldn’t I Just Plead Guilty?

“Over 80” charges are highly technical offences under the Criminal Code. You should always consult with a lawyer before deciding to plead guilty to any charge. In “Over 80” cases it is even more imperative to seek the advice of an experience criminal lawyer. While the Intoxilyzer is generally regarded as an accurate device, it is by no means infallible. Every “Over 80” case is unique and there are a number of technical, scientific and legal considerations that must be closely analyzed before deciding whether or not to plead guilty.

Because the Criminal Code affords a number of shortcuts to the Crown when attempting to prove an “Over 80” charge, Courts will require strict compliance with the technical requirements of the Code. Some of these requirements include:

  • The breath samples must be taken “as soon as practicable;”
  • The samples must be received in an approved container or instrument;
  • A qualified technician must make the analysis.

Section 258(1)(c) of the Criminal Code provides a shortcut to the Crown whereby the breath test readings are presumed to be the same as the blood alcohol readings at the time of driving. However, in order to take advantage of this presumption the breath test must be taken within 2 hours of the breath demand.

If the police fail to administer the test within 2 hours, the Crown will not be able to rely upon this presumption, and will have to attempt to call expert evidence to “read back” the blood-alcohol level to the time of driving. Often in these cases the Crown will be unsuccessful in obtaining a conviction.

Depending upon the particular facts of the case, it may also be possible to retain an expert witness to demonstrate that the Intoxilyzer device malfunctioned or was not operated properly. Where it is proven that the Intoxilyzer was not operated properly or malfunctioned, the Crown will not be able to rely upon the breath readings to secure a conviction. If the breath readings are inadmissible as evidence, it becomes very difficult for the Crown to prove an “Over 80” case.

What are Some Additional Defences to an “Over 80” Charge?

Due to the highly technical nature of the impaired driving provisions, the failure to comply with one of these requirements may afford a complete defence to the charges. There are a number of additional defences that may be raised in impaired and “Over 80” cases. These might include:

  • A breach of the accused’s right to counsel under s. 10(b) of the Charter;
  • The lack of reasonable and probable grounds by the police to make the breath demand or stop the vehicle;
  • Unreasonable delay in bringing the case to trial;
  • Breaches of the accused’s right against unreasonable search and seizure where impermissible strip searches are conducted;
  • Bolus drinking, or the “last drink defence,” where the Intoxilyzer readings are not challenged as inaccurate, but the pattern of drinking would cause the accused’s blood alcohol concentration to be under .08 at the time of driving.

What is Bolus Drinking, or the “Last Drink” Defence”?

There may be circumstances where the accused’s pattern of drinking is such that their blood-alcohol concentration could have been under .08 at the time of driving, and still be accurately recorded by the Intoxilyzer at the police station as being over the legal limit. This situation may exist where a large quantity of alcohol was consumed immediately before driving. Due to the quantity of alcohol consumed, it may be that the accused’s blood alcohol concentration was under .08 at the time that they were stopped by the police, but continued to rise to the illegal level by the time that they arrived back at the police station.

Recent amendments to the Criminal Code, however, make bolus drinking a very difficult defence to put forward. Under section 258(1)(d.1) of the Criminal Code, bolus drinking may only be argued where there is evidence to demonstrate that the accused’s consumption of alcohol: 1) would render the concentration lower than .08 at the time of driving; and 2) that the concentration of alcohol in the accused’s blood is consistent with the breath test readings at the station. Practically speaking, the bolus drinking defence might only assist an accused where the breath test readings are only slightly over the legal limit, and where there is clear evidence as to the accused’s pattern of drinking before driving.

What Are the Penalties for Registering in the Warn Range (.05 to .08) at a Roadside Stop?

Recent amendments to the Highway Traffic Act have enacted penalties for Ontario drivers who register a blood alcohol level in the “warn rage” (.05 to .08). Registering in the warn range may result in a number of consequences without a right of appeal. Some of the consequences are as follows:

1st Time: A 3-day license suspension; and a $150 administrative monetary penalty to reinstate your license.

2nd Time (within 5 years): A 7-day license suspension; a mandatory alcohol education program; and a $150 administrative monetary penalty to reinstate your license.

3rd Time (within 5 years): A 30 day license suspension; mandatory participation in an alcohol treatment program; a 6 month ignition interlock condition placed on your license; and a $150 administrative monetary penalty to reinstate your license.

What are the Penalties Under the Criminal Code for a DUI, Impaired Driving or an “Over .08” Conviction?

Convictions for impaired and “over .08” charges are quite severe. The consequences under the Criminal Code are as follows:

1st Offence: A minimum $1,000 fine; and a 1 year license suspension.

2nd Offence: A minimum period of 30 days in jail; a fine within the Judge’s discretion; and a 3 year license suspension.

3rd and Subsequent Offence: A minimum period of 120 days in jail; a lifetime license suspension; and a fine within the Judge’s discretion.

If I Am Convicted of Impaired Driving or “Over .08” Is It Possible to Get My License Back Sooner?

The default license suspension period for an impaired or “over .08” conviction is 1 year. After this period, an ignition interlock condition will remain on your license for an additional year. However, there are two different “streams” that allow for early license reinstatement.

Stream A

Stream A will only apply to drivers who plead guilty and are sentenced within 90 days of the date of the offence. If one decides to plead guilty within this period of time, the minimum license suspension may be reduced to 3 months, with a further 9 month ignition interlock condition. In order to qualify for Stream A, the accused driver must complete the assessment component of the Remedial Measures (Back on Track) Program before the 3 month minimum license suspension period expires. Drivers must also install the ignition interlock device on their vehicle within 30 days of their conditional license reinstatement.

Stream B

Drivers who plead guilty to an impaired driving charge 90 days or more after the date of the offence, or those who are found guilty after trial, may still qualify for a reduced license suspension under Stream B. The conditions for early license reinstatement are the same as Stream A. However, under Stream B, the minimum license suspension period is 6 months. The ignition interlock condition will also remain on your license for 12 months.

What If I Do Not Want to Install the Ignition Interlock Device on My Vehicle?

Drivers who choose not to install in the ignition interlock device on their vehicle will have their license suspended for 1 year. You will also have to wait another year before the ignition interlock condition expires. You must still complete the remedial measures program (Back on Track) to be able to drive at the conclusion of the suspension/interlock condition period.


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