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DUI Lawyer Toronto

Toronto Lawyer Defends Your Impaired Driving and Driving Over 80 Charges

Being charged with “drinking and driving” or DUI (driving under the influence) such as impaired drivingdriving over 80 or refusing a breath sample is a criminal matter in Canada governed by the Criminal Code. Daniel Brown has extensive experience representing people facing impaired driving, over 80  and refusing a breath sample charges. He understands that the consequences of a drinking and driving conviction may have a significant impact on a person’s ability to work, travel and gain future employment due to the harsh sanctions imposed on all drivers found guilty of these types of crimes.

Daniel Brown always stays on top of the legal issues and law pertaining to DUI defences. In fact, Daniel has authored comprehensive articles on the topic of defending drinking and driving charges for various legal journals including “For the Defence” a publication produced for members of the Criminal Lawyers Association, the largest specialty legal organization in Canada.

Recognized as a Criminal Law Specialist, Daniel Brown is often sought out by the media to comment on drinking and driving related cases making headlines. Follow these links for some recent examples:

If you are facing a drinking and driving related charge and are in need of an impaired driving, over 80, or DUI lawyer, immediately contact Daniel Brown at (416) 297-7200 for a consultation. Please continue reading below to learn more about defending drinking and driving charges in Toronto, Ontario.


Frequently Asked Questions about Drinking and Driving:

What is drinking and driving?

Driving while impaired by alcohol, driving with more than 80 milligrams of alcohol in 100 millilitres of blood (Over 80) or refusing to provide a breath sample are all examples of drinking and driving offences in Canada.


What are the penalties for drinking and driving in Canada?

The Criminal Code provides a minimum fine of $1000 for a first offence in addition to a criminal conviction registered on your permanent record. Subsequent drunk driving convictions carry minimum jail penalties beginning with 30 days in jail for a second conviction. A third or subsequent drinking and driving offence will carry a minimum punishment of 120 days in jail.

A drinking and driving conviction will also require a mandatory driving prohibition preventing a prohibited driver from driving anywhere in for a minimum of one year, or three months in a province such as Quebec or Alberta that has an concurrent ignition interlock program. Read more about Ontario’s ignition interlock program. In addition to the penalties mandated under the Criminal Code, a conviction for DUI will also drastically affect your motor vehicle insurance coverage and premiums. In Ontario, you will probably be required to insure with Facility Association, which insures high-risk drivers and exacts high premiums. For each of the three years following your conviction, Facility Association will levy a 100 per cent surcharge atop your premiums. It will impose more surcharges, up to a maximum of 250 per cent, for other convictions relating to the same incident, such as careless driving or failing to remain at the scene of an accident. Each insurance company has its own conviction surcharge schedule.


What is the difference between impaired driving, over 80, and refusal to provide a breath sample?

Impaired driving

In order to establish an impaired driving charge, the crown attorney  must prove beyond a reasonable doubt that the driver’s ability to operate a motor vehicle was impaired due to the consumption of drugs or alcohol. The court will examine the driver’s co-ordination, comprehension and a poor driving pattern in assessing their level of impairment.

Evidence of impairment may be proven by a combination of driving observations and physical observations of the driver. Evidence of poor or erratic driving, weaving, crossing of the centre line or evidence of a motor vehicle collision may all be used to support an inference of impaired driving. Personal observations tending to reveal signs of impairment may also be relied upon, including: an odour of alcoholic beverage emanating from the driver’s breath, bloodshot eyes, dilated pupils, unsteadiness, slurred speech and a lack of comprehension or response to police demands.

Police Evidence and Impaired Driving

Intoxication and impairment does not require the opinion of a medical expert. A police officer or other lay person is perfectly qualified to give their opinion on whether a person appears impaired by alcohol or drugs. Opinions of police officers about a person’s level of impairment are not to be given more weight in court simply because they come from police officers.

Over 80

Unlike impaired driving, the offence of “over 80” does not require proof of impairment of any kind, only proof that the driver had a concentration of alcohol in their blood exceeding 80 milligrams of alcohol in one hundred millilitres of blood. This alcohol concentration reading is usually determined from an analysis of breath samples obtained by police and processed with a breathalyser machine capable of providing such results. These results can also be obtained by testing a sample of the driver’s blood.

A person  under investigation for being over 80 does not get to choose whether they will provide a breath sample or a blood sample. Only a police officer can choose whether to demand a blood sample. Moreover, a blood sample may only be sought by the officer if the officer believes that the person may be incapable of providing a breath sample by reason of his or her physical condition, or it would be impractical to obtain a breath sample in all the circumstances. Put differently, a blood sample to determine the concentration of alcohol in a person’s body is a process of last resort.

Refuse to blow or refuse to provide a breath sample

The offence of refusing to provide a breath sample, either for the roadside screening device or an approved breathalyser machine at the police station is another drinking and driving offence. The consequences of a conviction on only this charge is essentially the same as a conviction for impaired driving or over 80, namely, a criminal conviction, driving prohibition, license suspension and the same insurance consequences. A person convicted of refusing to provide a breath sample may also be convicted of driving while impaired.

In order to be convicted of failing or refusing a breath sample, the prosecutor must prove beyond a reasonable doubt that the officer made a valid and lawful demand for the breath sample, that the defendant failed or refused to produce the required sample of breath and that the defendant intended to produce that failure. Most breath refusal cases will turn on whether the officer had a sufficient basis to make the breath demand and whether they intentionally failed to provide a breath sample. Quite often, a person may fail to provide a sample due to a medical reason such as an injury or a breathing disorder such as Asthma which may make it challenging to comply with the officer’s demand for a breath sample. Read more about refusing to provide a breath sample and how you can defend this type of charge.


Stopping a motorist – from traffic stop to trial:

In Canada, provincial driving legislation such as the Highway Traffic Act in Ontario, enables police to stop and investigate drivers for drinking and driving offences. Police may also set up stop checkpoints to pull vehicles over for the purpose of checking for signs of drunk driving, known as R.I.D.E. (Reduce Impaired Driving Everywhere).

This power to investigate a driver of a motor vehicle regarding their sobriety does not require the officer to suspect a person has consumed alcohol or is impaired by alcohol or drugs when they commence their investigation. Anyone can be investigated for drinking and driving. While the law allows a person to be stopped in a drinking and driving investigation, the law does not permit an officer to demand a roadside breath test without more.

In order to require a person to submit to a roadside breath test, the person under investigation must be operating or “in care or control” of a motor vehicle at the time of investigation AND the officer must reasonably suspect the person under investigation has alcohol in his or her system. The officer may have a reasonable suspicion the person has alcohol in their body if they admit to have recently consumed alcohol or if the person under investigation demonstrates visible signs of impairment. Even the odour of an alcoholic beverage emanating from the mouth of the driver may be enough to initiate a roadside breath test.

Once the officer reasonably suspects the driver to have alcohol in their system, they may require the driver to provide a sample of their breath into a special breath testing device for analysis. In some instances, the failure of police to establish they had grounds to suspect alcohol had been recently consumed may amount to a defence to an over 80 or refuse breath sample charge because the unlawful breath demand would invalidate the subsequent test results.

The roadside screening test results will either return a “pass”, “warn” or “fail” result. The machine is calibrated to fail when a person has over 100 milligrams of alcohol in 100 millilitres of blood. Failing the roadside test is not evidence that can be used at a person’s trial for an over 80 charge.

Evidence of a failed test is not proof of the level of alcohol in the person’s blood. It is only used to justify a further demand for a sample of breath into an “approved instrument” capable of providing a proper reading of the person’s blood alcohol level. Once a driver fails the roadside breath test, the officer will be permitted to arrest the driver for the offence of driving with over 80 mg of alcohol in their body. An arrest for over 80 charge may also be accompanied by an arrest for impaired driving if the driver exhibits clear signs of impairment by the manner they were driving the vehicle or physical observations of the driver under investigation. An arrest will require the driver to be brought to the police station for a further set of tests which may be used in evidence at their trial for a drinking and driving offence.


Can I speak to a lawyer before I give a breath sample?

Upon arrest, an individual is entitled to consult with a lawyer for the purpose of obtaining advice about their legal situation prior to providing a breath sample at the station. Everyone on arrest must also be advised of the availability of a 24-hour toll-free legal aid number for those who do not have a lawyer to call but wish to obtain legal advice. If the police fail to advise a person under arrest of these constitutional rights, or fail to provide the person under arrest an opportunity to contact counsel, the failure to do so may result in the exclusion of the defendant’s alcohol level readings obtained at the police station. This exclusion of evidence would likely result in an acquittal at trial.

The right to consult with counsel is not an absolute right at the time of a roadside demand for a breath sample (as the accused is not under arrest at this time). Recent case law developments suggest that in some circumstances, a person required to provide a roadside breath sample may have a right to consult with counsel prior to providing a breath sample if the roadside breath testing machine is not readily available and there will be a delay in getting the machine to the person under investigation. In some instances, the failure to permit consultation with a lawyer prior to providing the roadside sample may result in the exclusion of the sample and any subsequent evidence.

Each situation is fact specific. An experienced criminal lawyer who regularly defends drinking and driving cases will be able to provide you with an opinion on whether or not your constitutional rights have been violated by the police during the course of their investigation.


Are there defences to drinking and driving charges?

There are a number of ways to defend against allegations of drinking and driving. The defences to these types of allegations vary, from challenging the accuracy of the machine receiving the breath sample, to challenging the officer’s belief for demanding the sample in the first place. Other defences may be raised based on the denial of constitutional rights prior to the taking of breath samples or delay in the testing procedures. The area of drinking and driving case law is extremely complex and it is difficult to summarize all of the important aspects of the law in a short article.


What are the consequences for a drinking and driving conviction?

The punishments for operation while impaired, driving with a blood-alcohol level over the legal limit and failure to comply with a demand to provide a breath or blood sample are all identical. These are hybrid offences, and whether they are prosecuted by indictment or summary conviction there is a minimum fine of $1,000 for a first offence, 30 days imprisonment for a second offence and 120 days imprisonment for each subsequent offence. If the Crown prosecutes by indictment, the maximum term of imprisonment is five years, and a maximum term of 18 months’ imprisonment is prescribed on summary conviction. If bodily harm is caused, no matter which offence is charged, the offence is an indictable one with a maximum term of 10 years’ imprisonment. If death is caused, the offence is indictable and the maximum term is life imprisonment.

A minimum fine consequence for any drinking and driving offence means that a person convicted of any of these offences will have a permanent criminal record. All drinking and driving offences carry a mandatory license suspension of at least 12 months.

Given the numerous consequences of a drinking and driving conviction, it is important to consult with a lawyer in order to identify possible defences to the allegations. For a consultation, call Daniel Brown at (416) 297-7200 to discuss your case.