Common Reasons A DUI Charge May Be Withdrawn Before Trial

Today, I’m going to be going over with you the common reasons an impaired driving or DUI charge in Canada could be withdrawn before trial. First and foremost, we have a Canadian Charter of Rights and Freedoms, and a lot of cases are dropped because I can point out to the Crown before the trial that there’s a Charter violation, there could be a rights to counsel, arrest, search and seizure. The Charter applies to impaired driving, and it’s very complicated area of law, and it’s hard for the police to do it right. So I can often point out to the Crown that there’s a huge mistake here, and there’s no reasonable prospect of conviction, because the breath rate is going to be excluded under the Charter. For example, if the police don’t do the rights to counsel properly, then there’s a violation under Section 10 B of the Charter. And typically, a lawyer would get that excluded under Section 24 two of the Charter, if the violation is serious enough. So there you have it. The Crown will look at the case. They might say to themselves, well, we don’t have a great, reasonable prospective conviction here. You’ve pointed this out to me. We’ll either withdraw it outright or maybe we’ll offer you a careless driving plea under the Highway Traffic Act to avoid a criminal record. So that’s a great result either way. And really that’s the most common way in Ontario and throughout Canada get these cases thrown out. Now, sometimes I’ll file a Charter application. They have to be filed before the trial, by the way, and the Crown, I tried to convince them early on to drop the charge. No, no, no, we think we got a strong case, but then they read the 20- or 30-page written submissions that I submit, say, two months before the trial. Oh, defence counsel is right. We’re going to drop this charge. We’re going to offer a careless, or it’s so strong that they drop it out, right? But usually we’ll accept a careless, even if there’s some, you know, 80% chance of winning, 20% chance of losing, you’re still going to take that deal to avoid a criminal record. So, I have clients sometimes say, well, why would I accept a careless if I’m going to win this? Well, you might not win. There’s a risk, so you have to weigh the cost benefit analysis. So, second reason is there’s problems with the breath testing procedure. I won’t get into the details, but there’s a lot of technical difficulties that the police have to go through to sequentially process unimpaired driving from the time of the arrest to setting up the intoxicator the police station, and doing all of these steps perfectly. And often there’s a breakdown. And the police do make mistakes. If I can point that out to the Crown, they often will, if it’s serious enough, withdraw the charge or offer careless before the trial. So that’s the that’s an important one as well. And the police do make mistakes. I mean, some police are exceptional at this, and they don’t often make mistakes, and others do. We’re just human, or police are just human. A big one as well is delays in getting the matter to trial. Under Section 11 B of the Canadian Charter of Rights and Freedoms, we have a right, I’ll call it a right to a speedy trial. It’s getting to trial within a reasonable time, the Jordan rule, that’s what they call this case. By the way, it’s right to speedy trial. I use that as vernacular here, but it’s really a right to be tried within a reasonable time in Canada, and that’s under Section 11 B of the Canadian Charter Rights and Freedoms. Now there’s a rule Jordan, J, O, R, D, A N. The Supreme Court of Canada has set that rule at 18 months. So, if you can show that there’s 18 months of delay from the time of the arrest to the time of the trial, which was not caused by defence counsel, you would have a reasonably good chance of getting the charge stayed and thrown out. Oftentimes, we will file one of those, and the crowd will look at it and say, well, defence counsel is right. We’re going to either withdraw, withdraw it outright, or offer a careless and that does happen. It doesn’t happen often, but increasingly so. It depends on the jurisdiction. For example, if you in a small county, they don’t have a delay problem. But if you’re in Toronto, for example, like for example, Brampton has had a consistent delay problem, and sometimes you can get the cases thrown out for delay. Now, the fourth reason, generally a weak case. What I would say is this, the rule that the Crown has to look at is they’re going to look at their disclosure, they’re going to look at the police reports, the evidence, and they’re going to say themselves. And I’m going to point out to their problems. Is there a reasonable prospect to conviction. Look, there’s inconsistency,Mr. Crown and the police notes. They haven’t done this right? They haven’t done that right. There’s no evidence of bad driving. The symptoms weren’t serious enough. There’s Charter violations. So this is a case where there’s really no reasonable prospect to conviction, and those cases can sometimes get thrown out without having a trial as well. SomeCrowns will dig in, of course, on these things, though they won’t agree with me. Well, we’ll have a trial and see mistakes at this nature, we usually win. There’s always a risk of losing, but I can usually give the client odds within a range of you know odds of winning, and most clients will choose to go to trial if there’s at least a you know, 50% chance or more. Sometimes cases are close to slam dunk. It’s never a slam dunk, though you’re there’s always some risk of losing, and if you’re offered a careless you often will want to take that. Now, the other big one in the province, which has emerged in recent years, and particularly during covid and post covid, if there’s low breath readings, if the readings are under 120 for example, and it’s a good person with no prior record, they’ve got a job, they’re a credit to the community. The Crown will often in that situation, and there’s no aggravating situation, there’s no child in the back seat in danger, there’s no motor vehicle accidents. We can often, with a good criminal lawyer, negotiate to get a careless driving, get it dropped. So there you have it. Those are five common reasons for getting an impaired driving or DUI, or over 80 or impaired by drug case too dropped, that is withdrawn, before you ever have to proceed to trial. And that’s a great thing for clients to come to our office who have the mistakes that we can point out of the Crown and get their cases dropped.