What is an Impaired Driving offence?
This charge is found under section 253(1)(a) of the Criminal Code.
- In order to be found guilty, the Crown must be able to prove beyond a reasonable doubt that a person’s ability to operate a motor vehicle was impaired by alcohol or a drug.
- Currently, it is rare to be charged with impaired driving by a drug and it is often difficult for the Crown to prove such a charge beyond a reasonable doubt.
How Does the Crown Prove it?
Typically, the Crown will call witnesses who will testify as to the various physical symptoms and driving behaviour demonstrated by the accused in and around the time of driving, such as:
- Bad driving (ie. weaving)
- A motor vehicle accident
- Odour of alcohol on the breath (this alone does not mean the accused is impaired, but merely that she or he potentially had been drinking at some point)
- Bloodshot and/or watery eyes (this alone which means little)
- Unsteadiness, balance problems, walking problems, coordination problems
- Slurred speech
What is an Exceed or Over 80 charge?
The charge for driving with greater than 80 mg of alcohol in 100 ml of blood (commonly referred to as an ‘exceed’ or ‘over 80′ charge) is found under section 253(1)(b) of the Criminal Code.
- An exceed charge is laid when a driver is taken to the police station, provides two separate breath samples (at least 15 minutes apart) into a Breathalyzer or Intoxilyzer machine and the results of the lower of the two readings show that the person exceeds the legal limit of 80 mg of alcohol in 100 ml of blood.
- However, an over 80 charge is often very difficult for the Crown to prove beyond a reasonable doubt.
How Does the Crown Prove It
To successfully prove an exceed case, the Crown is required to prove beyond a reasonable doubt that the accused’s blood-alcohol level at the time the breath samples were taken is the same as his or her blood-alcohol level at the time of driving.
What is the difference between Impaired Driving and Exceed/Over 80?
Impaired driving is a completely separate charge from driving while having in excess of 80 mg of alcohol in 100 ml of blood (commonly referred to as an ‘exceed’ or ‘over 80′ charge). The exact wording of an exceed or over 80 charge is found under section 253(1)(b) of the Criminal Code.
The difference between an impaired driving and an exceed charge is illustrated as follows: A person who has never had a drink in his or her life, might be driving while “impaired” or even drunk after three or four drinks. They would then be charged with impaired driving because they are weaving all over the road, slurring, exhibiting balance problems and possibly other signs of impairment. However, they might blow under the legal limit of 80 mg of alcohol in 100 ml of blood. On the other hand, a chronic alcoholic might wake up every morning over the legal limit, but never be “impaired” because they never show signs of impairment such as slurred speech etc.
What is an Impaired Operation or Impaired Control/Care?
- Care or control of a motor vehicle while impaired by alcohol or a drug or being over the legal limit is a criminal offence under section 253(1)(a) and (b) of the Criminal Code, respectively.
- An intention to drive is not part of the offence. For example, care or control may be exercised without an intention to drive where a person performs some act or series of acts involving the use of the car, its fittings or equipment, whereby the vehicle may unintentionally be set in motion.
- An example would be where an individual who is impaired by alcohol or by a drug is sitting parked in the driver’s seat with the car engine running. Depending on the exact factual situation, a court could clearly find that there is a risk that the vehicle could be set in motion even though the person may not have an intention to drive.
This is a very complex area of drinking and driving/impaired by a drug law with reverse onus provisions and case law which is difficult to understand and reconcile. Defending a care or control case requires the expertise of an impaired driving lawyer who is well-versed and has extensive courtroom experience in this area of law.
There are various defences which can be advanced to show you were not in care or control. For example, depending on the particular fact situation, a person sleeping may or may not be in care or control and convicted or acquitted. A person who is sitting in the driver’s seat of a running car may be able to create a reasonable doubt by testifying that they had a clear plan not to drive and there was no risk of the car being put in motion. For example, they may have phoned a taxi to come and pick them up from the bar minutes before the police arrived and were simply waiting in the driver’s seat with the heat on and listening to music. The Supreme Court of Canada carefully analyzed the law of care and control in a recent decision called R. v. Bouldreault. The bottom line is that every care or control case turns upon its own particular facts. At Kruse Law Firm, an experienced Ontario OVI lawyer will work with you to defend your OVI offence.
Can the police arrest me without a roadside breath sample?
Whether or not the police are allowed to arrest you without demanding a roadside breath sample, depends on whether you are exhibiting signs that your ability to operate a motor vehicle is impaired by alcohol. If the police have reasonable and probable grounds to arrest a person for impaired driving, they do not have to demand a roadside screening device breath sample (i.e. an ‘alcotest’) and are allowed to arrest the person for impaired driving.
If the police merely have a suspicion that a person has been drinking (for example the driver admits they have been drinking or they have an odour of alcohol on their breath and there are minimal or no other symptoms of impairment), then the police must do a roadside breath sample screening test on the alcotest before deciding to arrest.
If the person passes the screening test, there will be no criminal charges laid and the person is free to go on their way. If they blow a warning on the screening test (50 mg to less than 100 mg), then the person will receive a three-day administrative licence suspension and their vehicle will usually be towed away, but they will not be charged with ‘over 80.’ However, If they fail the screening test (i.e. they register 100 mg or higher on the alcotest device) the police will then arrest them for ‘over 80’ (which is a different type of charge than ‘impaired driving’) and transport them to the police station for the two “real” breath tests on an Intoxilzer.
If they pass the Intoxilyzer tests at the police station (i.e. one of the two breath sample readings is exactly 80 mg or less), they generally will not be charged with a DUI (although there could be rare exceptions--for example if the person started to exhibit more significant alcohol impairment symptoms shortly after the screening device test, some police might charge them with impaired driving).
The police will generally round down the two Intoxilyzer reading to the nearest ten. For example, if the person’s Intoxilyzer test results were 85 mg and 88 mg these two readings would be rounded down to 80 mg and the police would likely not lay an ‘over 80’ charge as the person’s blood-alcohol level l was not over the legal limit of 80 mg.
A mere odour of alcohol on a person’s breath or an admission that they have been drinking does not prove that their ability to operate a motor vehicle is impaired by alcohol. It simply shows that they may have alcohol in their bloodstream and the police are required to do a roadside test to determine if they are over the legal limit.
The roadside screening device is calibrated to fail at 100 mg (and not at 80 mg which is the legal blood alcohol limit) to give a driver the benefit of the doubt. The results of a roadside screening device test have no evidentiary value in court, other than the fact that if a person registers a fail on an alcotest, this allows the police to arrest the person for ‘over 80’ and to demand breath samples be provided into an Intoxilyzer on two occasions at the police station. In other words, a judge at a trial is not allowed to take into account the results of the roadside screening test other than noting that it gave the arresting officer grounds to arrest for ‘over 80.’
If a police officer arrests a person for impaired driving without doing a screening test, a DUI lawyer will carefully examine the police reports (i.e. disclosure) to determine if the police had sufficient reasonable and probable grounds for arrest. If there were not sufficient objective reasonable and probable grounds for arrest, the lawyer will serve and file detailed written materials at least 30 days before the trial which is called a Charter application under s. 8 of the Canadian Charter of Rights and Freedoms, to exclude the breath samples under 24(2) of the Charter. The judge at trial will then make a decision to determine whether the breath samples should be thrown out (i.e. ‘excluded’ from evidence) based on a lack of reasonable and probable grounds.
If the judge rules on the Charter application that the breath samples should be thrown out, then the accused will usually win their case (except perhaps in those rare cases where they started to develop significant symptoms of alcohol impairment shortly after the screening device test-in that situation the Crown could try and proceed on an impaired driving charge if the police laid an impaired charge. However, the Crown might have a difficult time proving the person’s ability to drive was impaired beyond a reasonable doubt at the time of driving).
Filing a s. 8 and 24(2) Charter application is a common way of defending an ‘over 80’ charge. Every factual situation is unique and has to be carefully analyzed by a lawyer who is experienced and knowledgeable in defending DUI charges.
What happens when a person refuses to provide a roadside sample?
If a person refuses or fails to comply with the breath demand by, for example saying “no” or faking blowing etc., they will then be charged with refusing or failing to comply with a breath demand or providing a breath sample. The Crown will be required to prove beyond a reasonable doubt that the refusal to provide a breath sample or failure to comply was ‘final and unequivocal.’
If the Crown is able to prove a ‘final and unequivocal’ refusal, there are still defences to refusing to provide a breath sample such as having a ‘reasonable excuse’ not to provide a sample.
Many of the same ‘reasonable excuse’ defences apply to both refusing a roadside screening device and refusing an intoxilyzer breath demand. (See What Happens When a Person Refuses To Provide a Roadside Sample)
The courts have found many different reasons to be reasonable excuses. One example is having a health problem preventing the person from providing a proper sample. Another example of a reasonable excuse is demonstrating that the person was being mistreated by the police throughout the breath testing procedure and this “animosity” was playing on their mind at the time they refused. The many reasonable excuse defences are too numerous to list and the list is not closed. Each individual refusal factual situation must be examined to see if there is a valid defence. As a general rule, a person who is under arrest should always comply with a demand to provide breath samples. Although there are occasionally exceptions to the general rule, the advice that an experienced DUI lawyer will always provide to a detainee/person under arrest is that they should always provide a breath sample upon demand. It is too risky, for example, to refuse to provide a breath sample and hope your case turns out “after the fact” to be one of the narrow exceptions.
What is a roadside screening device?
We are all familiar with the RIDE Program (Reduced Impaired Driving Everywhere). If a person is flagged over for a RIDE program and for example, the officer detects an odour of alcohol on the person’s breath, the officer is entitled to form a reasonable suspicion that the person has been drinking and has alcohol in their system.
Upon the forming of this reasonable suspicion, the police officer is entitled to ‘forthwith’ make an approved roadside screening device demand. The detained person has absolutely no choice but to comply with this demand in most situations. The police officer does not have to provide the person with his or her right to counsel (which is normally read from a card and includes a 1-800 toll-free number for duty counsel) prior to making an approved screening device demand. However, there are exceptions to every rule. The safest course is to always provide a roadside breath sample on demand as it is very risky to assume that a particular facts situation might be the exception. Kruse Law Firm has local offices and lawyers in multiple cities in western Ontario. The firm focuses on defending impaired driving and DUI charges.
After making an approved screening device breath demand (ASD), the police officer is then required to ‘forthwith’ present a roadside screening device to the person and receive a breath sample into an approved screening device.
If the device needs to be brought to the scene, depending upon the number of minutes that pass, the charges might get thrown out by a judge because the person is under detention for too long, without receiving his or her right to counsel and/or the demand or breath sample is not provided ‘forthwith.’
The approved screening device is calibrated to show that the person will pass, fail, or receive a warning. A pass occurs when the person registers below 50 mg of alcohol in 100 ml of blood. The device is calibrated for a ” fail” at over 100 mg of alcohol in 100 ml of blood-even though the legal limit is 80 mg alcohol in 100 ml of blood. A warning is registered between 50 and 100 mg of alcohol in 100 ml of blood.
Obviously, if a person passes a screening test, they can proceed on their way. If the person receives a warning, they will receive a three-day licence suspension for a first-time offender and their vehicle will be towed. If they fail the roadside screening device, they will be arrested on ‘reasonable and probable grounds that they have greater than 80 mg of alcohol in 100 ml of blood.
The officer will then make a demand for two formal intoxilyzer breath samples to be taken at the police station. This is the “real test” and not to be confused with the roadside screening device test which merely allows the police officer to decide whether to arrest the person on ‘reasonable and probable grounds that they are over the legal limit of blood alcohol and to administer the two main or “real” breath tests at the police station.
What is a breathalyzer or intoxilyzer test?
The older machines are called breathalyzers. Most larger police departments now use modern computerized approved instruments which are known as “Intoxilyzer.”
If an accused is arrested for impaired driving and/or fails an approved roadside screening device test, the police will then read a breath demand to provide breath samples into either the intoxilyzer or breathalyzer. The accused will usually be brought to the police station. Breathalyzers or intoxilyzers are prepared by a ‘breath technician’ who has been trained to operate these scientific instruments.
Within a two-hour period of the time of driving or ‘as soon as practicable,’ the accused will be required to provide two breath samples into the approved breathalyzer. The instrument then analyzes the breath samples and provides an actual blood alcohol reading.
An Intoxilyzer test/breathalyzer test provides a computerized printout of the time of driving, arrest, demand etc and the actual readings expressed as a percentage. For example, if the computer printout is .123, this means the intoxilyzer analyzed that the person had 123 mg of alcohol in 100 ml of blood at the time stated.
It is important to note that the Courts do not consider that these scientific instruments are infallible. This is evidenced by the great success of the Carter defence throughout the province. An accused is not at the mercy of the machine. In fact, a successful Carter defence does not require an accused to ever show where the error lies in the machine. The bottom line is that the Courts have recognized that these instruments are only as good as the operator who uses them and whether they are properly and consistently maintained.
When is a breathalyzer or intoxilyzer test performed?
The police will make a breath demand when a person is exhibiting obvious signs of impairment. For example, when a person who is flagged over by a R.I.D.E. program is slurring their speech, there is an odour of alcohol on their breath, they are unsteady on their feet and they are driving badly the police will make a breath demand. In this situation, the police would not have to provide him or her with an approved screening device demand. They would likely immediately arrest the person, based upon reasonable and probable grounds that their ability to operate a motor vehicle is impaired by the previous consumption of alcohol.
Upon arrest, the police officer would then read a formal demand (for the “main” or “real” tests) to provide breath samples at the police station. Again, this is a completely different situation from an approved screening device demand. It is not necessary for the police officer to go through the approved screening device demand procedure if they have reasonable and probable grounds that the person is impaired upon observation. Merely exhibiting an odour of alcohol and perhaps bloodshot and glassy eyes would only lead to a “suspicion” that the person had been drinking and had alcohol in their system. It would not lead to reasonable and probable grounds that they are impaired or over the legal limit.
To summarize, if a person has fairly obvious symptoms of impairment (as an example, bad driving, slurred speech and an obvious balance problem) the police officer will form reasonable and probable grounds that they are impaired or over the legal limit. The police officer will not give them an approved screening device demand. They will immediately arrest the person and read them a formal breath demand for the ‘real’ breath tests to be taken at the police station. They are then required to provide them with their rights to counsel and allow them to talk to the lawyer of their choosing or duty counsel upon request. Ultimately, two breath samples at least 15 minutes apart (longer with an intoxilyzer) will have to be provided at the police station. These two breath samples will have to be taken ‘as soon as practicable and the first breath sample must be taken within two hours.
How can Kruse Law Firm win an Exceed or Over 80 trial?
First, we try to demonstrate that the Crown has not proven beyond a reasonable doubt one of the essential elements which the Crown must prove to rely on the “presumption” or “legal fiction” set out in the Criminal Code. This “legal fiction” is explained under the heading, “What is an ‘Exceed’ or ‘Over 80′ Charge” (i.e. the accused’s blood alcohol reading at the time the breath sample was taken is the same as the blood alcohol level at the time of driving). In other words, we try to demonstrate that the police or Crown Attorney has not carefully proven the checklist of matters which the Criminal Code says they must prove.
Proving each of these elements or the “checklist” can be a significant hurdle for the Crown Attorney. Essentially, if there is a breakdown or mistake shown in any one of the elements, the accused will win his case.
It may be possible for an Ontario DWI lawyer to get your case reduced or even dismissed. If there is a way to win your OVI, DUI, or drunk driving case anywhere in Ontario – Kruse Law Firm will find it.
If the Crown or police are inexperienced or make an important error in their notebooks or while giving evidence, a competent impaired driving lawyer will usually win the trial. The impaired driving precedent case law is constantly changing. Therefore, even the most experienced or competent police officer can easily make a mistake while processing our clients or while giving their evidence. Kruse law firm will find these errors and exploit them to our clients’ benefit.
An accused could also potentially win an exceed case if they were able to demonstrate that the police officer did not properly follow and properly testify in court to what can be characterized as a very detailed checklist of matters which must be proven beyond a reasonable doubt to convict an accused in any over 80 case.
This is a very technical area of the law and police officers can and do make mistakes very easily. For example, when a person is arrested, the police officer will usually immediately read the person the standard ‘right to counsel’ under the Canadian Charter from a pre-printed card or form along with a toll-free number to call duty counsel. Many exceed cases are won because of a myriad of potential mistakes that the police make with respect to the rights to counsel issue.
The issue of rights to counsel is a very heavily litigated and potentially confusing area of Canadian law. There are literally thousands of cases which can be applied to any given fact situation. Successfully arguing a right to counsel issue in court requires extensive legal research. In fact, impaired driving/exceed law, in general, is the most heavily litigated area of Canadian law. This fact is often very surprising to the public and to lawyers who do not practice in this area of law.
The bottom line is that there is extensive case law and various loopholes which Kruse Law Firm competently exploits to win our clients’ trials.
Identifying and exploiting police mistakes are important because the Crown may not be in a position to proceed. For example, a mistake or breach of the right to counsel issue may lead to a judge excluding the results of the breath tests under the Canadian Charter of Rights and Freedoms. We have seen individuals with readings of at least 250 mg of alcohol in 100 ml of blood win an exceed case based on a right to counsel argument. In this situation, the judge actually never even gets to see the very high breath readings and the case is thrown out based on a pre-trial Charter application.
The legal and factual issues and case law are endless. An impaired driving lawyer must be resourceful, creative, fearless and diligent in finding every avenue of defence and turning over every stone.
The Carter Defence
In July of 2008 Parliament abolished a very common and successful defence called the Carter defence which was known as an “evidence to the contrary” defence. Kruse Law Firm historically had an approximately 90% success rate in wining cases using this defence. Essentially, a Carter defence was based on the accused’s evidence concerning his or her drinking pattern, age and weight coupled with expert toxicology evidence calculating the person’s actual blood alcohol level at the time of driving and therefore constituting “evidence to the contrary”.
A Carter or evidence to the contrary defence basically meant the defence lawyer was trying to create reasonable doubt that the approved instrument (an intoxilyzer or breathalyzer) was not accurate and the person’s blood-alcohol level could have been below the legal limit at the time of driving.
Kruse Law Firm retained highly adept forensic toxicologists to provide evidence at their clients’ trials. Through proper witness and trial preparation, Kruse Law Firm and other top impaired driving lawyers in the province were able to consistently win over 80 cases by presenting a carefully crafted Carter defence.
An accused did not have to prove anything in court when advancing a Carter defence. The judge only had to be left with a reasonable doubt that the accused’s blood-alcohol level could have been below the legal limit. Kruse Law Firm clients won their cases even if the judge stated on the record that he or she did not necessarily believe them. However, if the judge was not able to completely reject the evidence of their client and/or his or her other witnesses as to his or her drinking pattern, the judge was left with a reasonable doubt and the case was dismissed.
judges often stated during their judgment at the end of the trial, “I do not believe the accused, but I cannot reject his or her evidence which might reasonably be true." This was a very low threshold for an accused to attain. If the judge made this seemingly easy-to-arrive-at finding of being left in a state of reasonable doubt, the accused’s exceed charge was dismissed.
With the demise of the Carter defence, Kruse Law firm has been among the leaders in the province in devising other highly innovative ways to win over 80 cases. One of these innovations is by bringing complex technical disclosure applications in an attempt to force the Crown to provide historical records, repair records, computer downloads, etc. in an attempt to ultimately demonstrate to the judge that the breathalyzer or intoxilyzer in question was not functioning properly or being operated properly at the time the client’s breath was tested. This type of “evidence to the contrary” attack on the breath instrument or “machine” involves a battle of experts which requires detailed knowledge of the inner workings of the breathalyzer and intoxilyzer. There are very few criminal lawyers in the province who have the specific knowledge and skill to mount this type of attack. The firm has successfully advanced this highly technical argument in various counties throughout the province and will continue to find unique and innovative ways to fight for their clients and win their cases.
Kruse Law firm is also presently mounting various constitutional challenges across the province arguing that the Bill C-2 legislation abolishing the Carter defence is unconstitutional and individuals charged with an over 80 offence should be allowed to advance a Carter defence. Time will tell whether these constitutional challenges will be successful as these matters are likely to be appealed through the various levels of appeal courts, up to and including the Supreme Court of Canada. However, the firm believes that the arguments set out in their various constitutional challenges have great merit and are compelling. It will likely take several years before these very complex legal issues are ultimately decided by the Supreme Court of Canada.
How can Kruse Law Firm win an Impaired Driving trial?
There are literally hundreds of ways to win an impaired driving case. When charged with impaired driving in Ontario, a person merely needs to convince a judge that there is a ‘reasonable doubt’ that they were impaired. The burden or onus is always on the prosecutor to prove impairment beyond a reasonable doubt. Our goal throughout the trial is to demonstrate or create a reasonable doubt in the judge’s mind.
There are many ways that this can be accomplished. For example, by vigorously cross-examining and confronting the police officer(s) that they are mistaken, inconsistent and exaggerating, etc. We will highlight and demonstrate that bad driving such as weaving or straddling the line could be easily explained as being within the range of the driving behaviour of a sober driver. For example, an accident does not necessarily tend to prove anything regarding whether a person’s ability to operate a motor vehicle was impaired by alcohol. Also, some accidents can cause concussion symptoms which perfectly mimic impaired driving symptoms. In fact, many cases involving motor vehicle accidents are won this way.
Slurring and mumbling can be caused by a speech impediment (an individual may typically speak in such a manner), extreme fatigue or even the normal nervousness experienced by a driver who has been detained by a police officer. The arresting officer typically is not aware of how a client normally speaks and has to make certain assumptions in stating that the client was ‘slurring’ or ‘mumbling.’ This could be their normal manner of speaking.
With over 78 years of combined criminal trial experience, the DUI lawyers at the Kruse Law Firm have defended Impaired Charge Ontario Cases throughout the province.
Police officers will normally testify that they detected symptoms of impairment on a person such as the smell of alcohol. An odour of alcohol by itself is essentially meaningless. It only shows that a person has consumed alcohol. Similarly, bloodshot eyes could be caused by various other reasons which are unrelated to consuming alcohol. There may also be plausible explanations for balance and coordination problems. For example, some individuals may be unsteady because of nervousness in the presence of uniformed police officers. There are many other plausible explanations for impaired driving symptoms.
An accused can also call his own defence witnesses who will testify that the accused was sober and not impaired before, during or after the time of driving. This defence evidence could create a reasonable doubt. It could also tend to cast doubt on the credibility and reliability of the testimony of the police officers. Assuming a witness testifies that the accused was sober and not impaired by alcohol at the time of driving, a judge may be hard-pressed to find reasons to completely reject this person’s testimony. It is often not difficult to create a reasonable doubt in this regard.
Both a layperson and a police officer are entitled to provide their opinion as to whether an accused’s ability to operate a motor vehicle was impaired at the time he or she drove the motor vehicle. A police officer’s opinion is not entitled to any greater weight than a civilian witness.
Many police forces now videotape the breath testing procedure and/or booking procedure at the police station. It is essential that a defence lawyer order the videotapes as part of the disclosure process. Kruse Law Firm is often able to use the videotape to our advantage to show our client was sober at the time of driving because they were not demonstrating any balance, coordination, or speech problems relatively shortly after the time of driving. It may be difficult to accept a police officer’s testimony who says that a person was slurring or had difficulty walking when the videotape clearly demonstrates otherwise.