After an arrest for drunk driving in Canada, many defendants are tempted to plead guilty in order to put the incident behind them. Unfortunately, admitting to the offence will still create a criminal record and could cause the loss of a person’s driving privileges. The only way to prevent a DUI charge from following you for the rest of your life is to have an experienced DUI lawyer build a defence that avoids conviction.
Potential Defences to a Charge of DUI
There is no minimum blood alcohol content (BAC) required to charge a driver with DUI in Canada. However, Crown prosecutors must prove that a driver’s operating ability was impaired by alcohol—not just that alcohol was present in the driver’s system—in order to get a conviction.
That said, there may be a number of defences to drunk driving charges that may apply in your case, including:
- “Last drink.” If the police make an arrest a short time after the driver has had their last drink, the BAC reading may reflect the presence of alcohol in the stomach rather than in the driver’s bloodstream. This defence might be available if you were stopped soon after leaving a bar or restaurant, especially if the police followed you from the drinking establishment on suspicion of impaired driving.
- Testing delays. In order for breath test results to be considered accurate, the first test must be taken within two hours of the time of driving. Under the Criminal Code of Canada, any BAC test conducted more than two hours after the accused has ceased operating the vehicle is invalid under the law.
- Improper breathalyzer. If a breathalyzer or intoxilyzer machine used to test your breath for alcohol was not operated correctly, not properly maintained by the department, or not calibrated before each use, the results might be called into question.
- Certificate not served. If you undergo BAC testing, a qualified technician must present you with a certificate proving your blood alcohol concentration. If the Crown cannot prove that you were given this certificate within a reasonable amount of time, the charges against you may be dropped.
- Differing opinions of intoxication. The officers at the scene are required to observe your behaviour and take accurate notes about your condition at the time of the arrest. However, it’s not uncommon for police officers to have differing opinions about the level of your impairment or for one officer to make conflicting statements at different points in the case. Significant differences in officers’ testimony could result in a dismissal of the charges.
- No right to counsel. Canadian law gives you the right to speak to a lawyer at the earliest opportunity, such as at the police station or at the scene of the traffic stop. If police officers do not give you the opportunity to call counsel, the charges may be dropped.
- Insufficient evidence of impairment. In order to convict a driver of DUI, there must be witness testimony that corroborates a driver’s impairment while operating the vehicle. Witnesses can include police officers, first responders, other drivers, or third parties who saw the vehicle in motion. Generally, someone must be willing to state under oath that the vehicle was being driven dangerously or abnormally (such as swerving, drifting between lanes, speeding, etc.) or that the driver’s behaviour suggested intoxication. The accuracy and admissibility of these statements may also be challenged in court.
- Illegal stop. In order for an arrest to be legal, police officers must have reasonable and probable grounds. Essentially, police cannot simply suspect intoxication but have a good and credible reason to believe intoxication is probable. If arresting officers did not have reasonable and probable grounds, any evidence you gave (including BAC testing) might be inadmissible.
We Can Determine the Best Defence for Your DUI Case
Depending on the circumstances of your case, there could also be common law defences available to you. For example, you may have been operating a vehicle while over the limit because there was a greater threat to you or someone you know—such as driving an injured friend to the hospital or escaping a violent situation.
If you have been charged with DUI in Ontario, Kruse Law Firm can help. Contact us today to set up your free case review.