Impaired / DUI and AALS

We've encountered a lot of people charged with impaired and over 80 offences who think, "well I blew over that's it right?" Wrong.  There are many defences to fight impaired driving charges.  

If an accused person has provided a sample then we typically see 2 charges.  One charge is called "impaired driving".  That charge considers driving behaviour and what we call indicia of impairment like a smell of alcohol on the breath, stumbling or a bad driving pattern.  To obtain a conviction a Crown prosecutor is required to provide proof beyond a reasonable doubt that a person's ability to drive was impaired by alcohol.  The second charge is called "over 80".  This charge deals with how much alcohol a person has in their blood when driving.  To obtain a conviction a crown prosecutor is required to prove that a person's blood alcohol concentration was over 80 milligrams percent alcohol in 100 millilitres of blood.  Typically this comes by way of breath samples provided at the police detachment but it can also come from blood samples.

If an accused person has provided breath samples, a successful defence will normally require exclusion of the breath samples from evidence.  We would argue that the police breached your Charter protected rights in dealing with you in order to obtain the Charter remedy of exclusion of evidence.  This is easier and more common than you might think.  In fact, these charges are some of the most litigated charges in the criminal justice system.  Unfortunately, this is also quite a technical area of law.  Some of the Charter defences that we most commonly argue are:

• That the officer violated your right against unreasonable search and seizure because they did not have a reasonable suspicion that you had alcohol in your body when you were driving
• That the officer violated your right against unreasonable search and seizure because they did not have reasonable grounds to believe that your ability to drive was impaired by alcohol
• That the officer violated your right against arbitrary detention because they did not have reasonable ground to arrest you
• That the officer violated your right against unreasonable search and seizure because they did not make the breath demand as soon as practicable or the samples were not taken as soon as practicable
• That the officer violated your right to counsel because you were not advised of your right to counsel without delay
• That the officer violated your right to counsel because you were not provided a reasonable opportunity to retain and instruct counsel without delay
• That the officer violated your right to counsel because the officer did not permit you to contact your counsel of choice

There are also other Charter breaches that come up less frequently and many variations on these.  During a free consultation we can review your disclosure to determine which defences may be available.  We strongly encourage everyone to at least have their disclosure reviewed by a lawyer prior to entering a guilty plea.