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Impaired Driving

by Alcohol or Drugs

The Charge

Notwithstanding the Immediate Roadside Prohibition regime set out in the Motor Vehicle Act, police and prosecutors do continue to charge drivers in BC with Criminal Code impaired driving offences; including driving over .08 and refusal to provide a breath sample. Collectively, these impaired driving offences, sometimes called “DUI’s,” are criminal matters that can have a profoundly serious impact on a person’s life, especially if they require a vehicle for work, school or family purposes. The penalties if convicted are significant. Everyone convicted of an impaired driving offence is sentenced for a minimum $1,000 fine and a minimum 1-year Canada-wide driving prohibition. At the end of the 12-month driving prohibition, RoadSafetyBC requires convicted drivers to enrol in the Responsible Drivers Program and possibly the Ignition Interlock Program as a condition of getting their license reinstated. These programs will cost the driver approximately $1,000 – $3,000. If convicted of an impaired driving offence, the driver will have a criminal record. Parliament has imposed mandatory minimum sentencing rules for impaired driving offences, including a mandatory 30-day minimum jail sentence for a second conviction and a mandatory minimum 4-month jail sentence for any subsequent convictions.

The penalties for refusing to provide a breath sample are even more serious. For a first offence, there is a mandatory minimum $2,000 fine and a one-year driving prohibition. A second conviction has a mandatory minimum punishment of 30 days in jail.

The Investigation

The Criminal Code provides that it is an offence to operate or have care or control of a motor vehicle while the driver is intoxicated by liquor or a drug. The Criminal Code sets out the various rules by which police will investigate drivers for alcohol and drug impairment. Simply put, the threshold for police to investigate impaired driving is very low. Police are entrusted with the power to get impaired drivers off the road so they are authorized to demand breath and blood samples for alcohol and drugs, sometimes with very little objective evidence of impairment. Typically, police will consider various physical symptoms of the driver, including bloodshot eyes, slurred speech, dishevelled appearance, stumbling, staggering, or alcohol emanating from the body or breath. Certainly, any evidence of bad driving, including erratic speed, unsafe lane changes or failing to stop at an intersection, will also be considered.

Impaired driving investigations are very difficult situations for a driver because, unlike the vast majority of criminal investigations, Parliament and the courts have made an exception to the general rule that a detained person is entitled to immediate legal advice. A driver being investigated for impaired driving at the roadside is not entitled to speak to a lawyer at this stage of the investigation! The driver is forced to comply with a breath or blood demand, if it is lawful, unless they have a reasonable excuse to refuse. Obviously, a driver being confronted with a breath demand at roadside will have a difficult time, without the benefit of hindsight, to know how to react to the investigator’s demands. The best approach for any driver is to ask the investigator for clarification on any unclear points – “may I please call a lawyer;” “please explain slowly and clearly how you want me to provide a sample of my breath,” etc. At the conclusion of the investigation, it is common practice for police in BC to release accused impaired drivers with various paperwork: a Promise to Appear in Court, a 24-hour driving prohibition pursuant to s. 215 of the Motor Vehicle Act, a 90-day Administrative Driving Prohibition pursuant to s. 94 of the Motor Vehicle Act and documents relating to the 30-day vehicle impoundment that accompanies an impaired driving charge.

Recent Successes

R. v. S.C. – Vancouver Police Investigation

Charge: Assault.
Issue: Whether there was credible evidence that would meet the charge approval standard.
Result: Mr. Gauthier provided information to the investigating officer that led the investigator to conclude that our client was not chargeable with a criminal offence. No charge approved. No criminal record.

R. vs. C.K. – Richmond Provincial Court

Charges: Assault; Forcible Confinement (domestic).
Issue: Given the rehabilitative steps we were able to guide our through, whether it was in the public interest for our client to be sentenced to a criminal record.
Result: Mr. Gauthier was able to persuade Crown to proceed only on the assault charge and, after hearing Mr. Gauthier's submissions, the Court granted our client a conditional discharge. No criminal conviction.

R.M. vs. Superintendent of Motor Vehicles

Charge: 90 Day Immediate Roadside prohibition.
Issue: Whether the police report established, on balance, that our client had refused to provide a breath sample during a roadside impaired driving investigation.
Result: The adjudicator agreed with Mr. Mines' submissions that our client's evidence was more reliable than the evidence set out in the Police Report to the Superintendent. The 90 day driving prohibition was overturned and our client was ruled eligible to resume driving.

R. vs. E.W. – Fort Nelson Provincial Court

Charge: Assault (domestic).
Issue: Whether there was a substantial likelihood of a criminal conviction.
Result: Upon reviewing the allegations, Mr. Mines made representations to Crown counsel resulting in Crown agreeing that there was no reasonable prospect of convicting our client. No charges were approved. No criminal record.

R. vs. H.K. – Vancouver Provincial Court

Charges: Assault Peace Officer; Mischief Under $5000.
Issue: Whether it was in the public interest to proceed with criminal charges.
Result: Mr. Gauthier was able to  persuade Crown counsel to allow our client into the Alternative Measures Program and to enter a stay of proceedings on both charges upon our client completing the program. No criminal record.

R. vs. R.S. – Richmond Provincial Court

Charge: Breach of Probation (from weapons charge).
Issue: Whether there was a public interest in proceeding with the prosecution of our client who had failed to complete a course of court ordered counselling.
Result: Mr. Gauthier was able to steer our client through an equivalent course of counselling. Upon completion, Crown counsel stayed the proceedings. No criminal record.

R. vs. S.P. – Vancouver Provincial Court

Charge: Mischief Causing Danger to Life.
Issue: Given the medical evidence Mr. Gauthier provided to Crown counsel, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown counsel to enter a stay of proceedings. No criminal record.

R. vs. R.A. – Vancouver Provincial Court

Charges: Breaking & Entering; Unlawful Confinement; Assault.
Issue: Whether it was in the public interest for the prosecution to continue against our client, a U.S. citizen who was in Canada on a visitor's visa.
Result: Mr. Mines was able to persuade Crown counsel to enter a stay of proceedings on all charges upon our client agreeing to a Deportation Order. No criminal record.

R. vs. P.N. – Surrey Provincial Court

Charge: Dangerous Driving Causing Death. Issue: Whether Crown could prove that our client had the necessary intent to prove that she was guilty of the criminal charge. Result: Mr. Mines was able to persuade Crown counsel to proceed under the Motor Vehicle Act rather than the Criminal Code. After hearing Mr. Mines'  submissions, the Court sentenced our client to 60 days to be served on weekends. The Crown had originally sought a sentence in the range of 2 years.

R. vs. L.A. – New Westminster Provincial Court

Charge: Breach of Probation (from domestic assault charge).
Issue: Whether it was in the public interest to prosecute our client for failing to report and complete counselling.
Result: Mr. Gauthier was able to guide our client back onto an alternative course of rehabilitation and persuaded Crown counsel to enter a stay of proceedings. No criminal conviction.

R. vs. M.K. – Richmond Provincial Court

Charges: Uttering Threats; Extortion.
Issue: Given the age of the charges and the rehabilitative steps our client had taken, whether a jail sentence was appropriate.
Result: Mr. Mines was able to persuade Crown counsel to seek a non custodial sentence. After hearing Mr. Mines' submissions, the Court granted our client a suspended sentence and placed him on probation for 16 months. No jail.

R. vs. K.A. – Western Communities Provincial Court

Charge: Assault (domestic).
Issues: Given the information we provided to Crown counsel regarding the complainant's past unlawful behaviour toward our client, whether there was a substantial likelihood of a conviction.
Result: As a result of the information we provided, Crown counsel withdrew the charge. No further bail restrictions. No criminal record.

The Defence

We are skilled, experienced lawyers that can help you sort through the various paperwork relating to the driving prohibitions and court date that follows in the aftermath of an impaired driving investigation. We can advise you of possible defences to the 90-day administrative driving prohibition, as well as the criminal charges themselves.

Impaired Driving

Evidence of impaired operation of a motor vehicle is distinct from the body of evidence involved in an “over .08” case. The Crown’s burden is to prove, beyond a reasonable doubt, that the driver’s ability to operate a motor vehicle has been impaired, even if only slightly. This evidence usually comes in the form of observations by police or other witnesses. Physical indicators of impairment can include slurred speech, bloodshot eyes, scent of alcohol on breath, stumbling, fumbling, or other signs of poor fine motor skills. As experienced defence counsel, we are able to challenge this type of evidence during courtroom cross-examination. For example, we may argue that balance problems may be due to a pre-existing injury, and bloodshot eyes may be due to recently swimming in chlorinated water. Skilled trial lawyers will explore a witness’ ability to observe and recall events. For example, did the witness get a clear, unobstructed, close-up view? Did the witness write concise notes from which to refresh their memory at trial?

Driving Over .08mg

It is unlawful to drive with a blood alcohol concentration greater than 80mg of alcohol in 100mL of blood. This “Over 0.8” offence can be proved by blood testing or, as is more common, breath testing. Provisions in the Criminal Code allow police to make a demand for a breath sample into an approved screening device and, where warranted, into a more sophisticated breathalyzer, the Intox EC/IR II. The results of this test are recorded onto a document called the Certificate of Qualified Technician, which can be submitted to the court as proof of the offence. As experienced defence counsel, we will explore defences to exclude incriminating breath results from the trial. Essentially, our job is to consider various provisions of the Charter of Rights and Freedoms which prohibit police from conducting unlawful searches and seizures, including, for example, a blood sample from a driver who was not first given the opportunity to obtain advice from a lawyer. Where the court agrees that police have violated a driver’s Charter rights, generally the court will exclude the Certificate of Qualified Technician, and the driver will be acquitted of the over .08 charge.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.