Drinking and Driving
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Often a drinking and driving charge can
be defended by showing that police or other authorities have violated
your rights under the Canadian Charter of Rights and Freedoms.
A drinking and driving investigation where breath tests are conducted
can engage the following constitutional rights:
If one or more of these rights is breached before
the breath tests are completed, it may be possible to exclude
the test results and secure your acquittal on a charge of over
80. Similarly, evidence of impairment may be excluded and a charge
of impaired driving dismissed if a breach occurs before the observations
of impairment are made. A charge of refuse sample may be dismissed
if a Charter violation precedes the refusal.
Right not to be arbitrarily detained
When police pull you over a detention occurs.
Under Section 9 of the Charter, police can lawfully stop you only
if they have "articulable cause." That is, there must
be objectively discernible facts that enable police to form a
reasonable suspicion you are committing a crime. Without such
facts, detention is arbitrary. A mere hunch based on intuition
is not enough - even if it proves accurate.
However, the right can be limited. In Ontario,
for example, the Highway Traffic Act allows police to stop you
at random to check your driver's licence and insurance, sobriety
and the mechanical fitness of your vehicle. Although there is
no "articulable cause" for random stops, the Supreme
Court of Canada has held that they are justified because they
help detect impaired drivers.
How might this help to defend a drinking and
driving charge? Police cannot stop you at random if they have
a "hunch" you are concealing drugs or weapons or involved
in other crime. If they initiate a random stop for reasons unrelated
to your sobriety or motor vehicle and end up charging you with
a drinking and driving offence after they smell alcohol on your
breath, it may be possible to exclude the evidence and get the
Right to be secure against unreasonable search or seizure
When you blow into a breath instrument, police
"seize" a sample of your breath. For the seizure to
be lawful, police need to have reasonable grounds
to believe you are committing the offence of Over 80 or Impaired
Driving when they demand you undergo breath tests. A "fail"
result on a roadside screening device normally furnishes such
grounds, as do indications of driver impairment.
How might this help to defend a drinking and
driving charge? The "fail" must be registered on a properly
functioning roadside screening device. If you show the device
is not in proper working order, the fail cannot give rise to a
reasonable belief that you are Over 80. If police arrested you
only because you failed the roadside screening device test, the
subsequent breath-test results may be excluded.
Similarly, if police arrest you for Impaired
Driving, the observations of impairment prior to your arrest must
be sufficient to create a reasonable belief you are impaired.
Speeding, weaving from lane to lane, smell of alcohol on your
breath, and red, glassy eyes likely justify an arrest. But if
police arrest you for Impaired Driving only because you're speeding
and your breath smells of alcohol, the arrest may be unlawful
and the results of subsequent breath tests may be excluded.
Right to counsel
Once you're arrested for a drinking and driving
offence and before a breath test, you have the right to speak
to a lawyer without delay and to be informed of that right. If
police infringe these rights, the results of any subsequent breath
tests may be excluded, resulting in your acquittal on
the charge of Over 80.
Language difficulties: You must be told of your
right to counsel meaningfully and comprehensibly. If you are not
a native English speaker, police may have to use an interpreter
and if you want to consult a lawyer they may have to put you in
touch with one who speaks your language.
Holding off requirement: Once you tell police
you want to talk to a lawyer, police must hold off from eliciting
further evidence until you have spoken to one. For example, they
cannot subject you to breath tests or question you about your
Counsel of choice: In addition, police must make
reasonable efforts to facilitate your contact with the lawyer
of your choice. If your lawyer does not answer the phone, police
may have to leave a message and wait for a response. They may
be violating your rights if they compel you to settle for advice
from state-funded duty counsel if your lawyer cannot be reached
Even if your trial prospects look bleak initially,
authorities may breach your Charter rights in the course of bringing
your case to trial, as explained below, enabling you to avoid
Right to make full answer and defence
The Charter entitles everyone facing a criminal
charge to obtain from the Crown all information reasonably capable
of affecting their defence. This information, required to make
full answer and defence, is referred to as "disclosure."
In a drinking and driving case, disclosure includes the notes
police record during the investigation and a copy of the videotape or DVD,
if any, showing your breath tests. You also have a right to know
what civilian witnesses have told police. In a refuse sample case,
you may be entitled to examine the mouthpiece for defects. The
loss or destruction of these materials may bar the Crown from
continuing your prosecution.
Under the Charter, everyone has the right to
be tried within a reasonable time. In a case tried in the lower
court (in Ontario, court of justice), once you've hired a lawyer
and have received basic disclosure, the Crown should bring you to trial within
eight to 10 months. Delay in excess of that, particularly where
it demonstrably hurts you, may foreclose your prosecution.
Disclaimer: The material on this site is not intended as legal advice. It merely conveys general information on legal issues commonly encountered by persons facing criminal charges in Canada. If you are charged with an offence, you should contact a criminal lawyer.