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Criminal & DUI Lawyers, including:
Three Former Crown Prosecutors

Rights And Obligations After Arrest For Impaired Driving Or Over 80

Video Transcript

I’d like to talk to you today about a very important topic – and that is: what are my rights and obligations after I’ve been charged with impaired or ‘over 80’?

So let’s take an example. You’ve been pulled over and the police have decided to arrest you for impaired driving or you’ve gone through a RIDE program and failed the screening test and now they arrest you. What can you do at that point? What do the police have to do as well?

First and foremost, you need to shut up. You should not say another word to the police other than some very few words that I’m gonna tell you about. The police are going to read from a card or they have memorized that you have the right to retain and instruct counsel without delay. And the right to phone a private lawyer or a 1-800 number for a duty counsel in the province. That’s your right. When they ask you if you understand that, you are to say one word: yes. If they ask if you wish to speak to a lawyer, you say: yes, right now please. Or simply, “yes”.

Now, depending how long they wait at the scene, they may have an obligation then and there to provide you with a lawyer to phone if you have a cell phone, for example. But if they leave the scene fairly quickly, they don’t have that obligation. So it really depends on how long they stay at the scene, whether you have that right. And if they don’t comply with that, you may have a defence for your case.

So they bring you back to the police station. What’re they going to do at the police station? They going to allow you to call either duty counsel or a private practice criminal lawyer. This can be from a list of lawyers that you can look up on the internet – usually there’s a list at most police stations. You want to speak to a private practice lawyer. They’ll try and phone that lawyer. If you don’t reach him or her, at some point you’re going to be required to speak to duty counsel. It depends on the number of minutes that go by. Take advantage of that opportunity. That lawyer’s going to tell you the same thing that I am: shut up and say nothing. The right to remain silent. Not a word. I mean, not one word other than the words I just told you: yes I want a lawyer, and yes I understand.

So what happens now? So you speak to the lawyer, the lawyer’s gonna be on the phone with you for a while – could be 10 minutes. You’ll ask some questions, they’ll answer them. But they’re gonna tell you two very important things.

You have the right to remain silent. You should exercize that right, say nothing. Don’t answer any questions. Don’t engage in small talk. All that’s doing is creating evidence against yourself. The more you talk, potentially the more you slur for example. Or you state incriminating evidence against yourself. Plus, even if you’re telling the truth, you can never tell the same story the same way twice. So on this particular occasion, you’re gonna say something. A year later in court, even though you were telling the truth on both occasions, you won’t get your story straight. What happens: you’re gonna get convicted.

Now, what else is a lawyer going to tell you? They’re going to take two breath samples in their intoxilizer. They’re going to give you a demand for that. You have to comply with that. You have to provide proper samples, do your best to provide those samples. Between those samples, there’s 17 minutes that have to pass. That’s a law, with intoxilizer law, that they have to wait 17 minutes to try and get a second sample in good agreement with the first sample. Usually between that 17 minutes, the police are going to start asking you further questions – maybe engage in small talk with you, et cetera, et cetera – ask questions from an alcohol influence report: where did you have the drink, where were you going, what time is it now, et cetera.

Answer none of them. Do not say a word. Just sit in your chair and ignore the officer. You know, the bottom line – you just sit in your chair as properly as you can and say nothing, and don’t engage in small talk, don’t answer questions. Why? You’re gonna incriminate yourself, you’re gonna create evidence against yourself. And if the prosecutor tries to introduce [your silence at] the trial – the judge is gonna go ballistic and say “look, that was the proper thing to do – say nothing. Move on, next question.” You’re not allowed to lead the fact that you said nothing. Because everyone wants to talk, but it’s precisely the wrong thing to do.

Provide the second sample. That’s the end of it, if you blow over on both – over 80 – and they’re in good agreement (within 20 of each other, rounded down; so for example 136 rounding down to 130 117 rounding down to 110, that’s good agreement, 20 apart truncated or rounded down) you’re gonna be charged. Say nothing after that. Take your release papers and move on. Now you may have a defence because you were smart enough to provide the samples and to shut up, and that’s very important advice that every lawyer that practices DUI is going to tell you to do, and you should follow it.

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