Operating a motor vehicle while your ability is impaired by alcohol is a serious criminal offence in Canada. Equally serious is the related offence of operating a motor vehilce with more than 80 milligrams of alcohol in 100 milliliters of your blood. So too is the offence of failing or refusing to provide a breath sample at the roadside or at the police station. Each of these offences are informally but frequently referred to as “DUI charges”.
Being convicted of a DUI offence despite having no prior criminal record in Ontario will automatically result in a driving suspension of at least one year and a substantial fine. Subsequent DUI convictions, in accordance with Parliament’s minimum sentencing provisions, will result in increasing mandadory jail sentences. A conviction for impaired driving or operating a motor vehicle “over 80″ will also result in a criminal record. This carries a series of severe negative consequences for an individual’s personal and professional life. Devastating automobile insurance costs in the future are a certainty.
There are many lawyers in Ontario who “defend DUI charges”. In reality, the vast majority of individuals charged with operating over the legal limit or driving while impared plead guilty to these charges – whether they are represented by a lawyer or not. One of the key reasons for this is very clear to us – the complexity of the law and the sophistication of prosecution witnesses, especially police breath technicians and forensic toxicologists hired by the prosecution.
The Criminal Code of Canada contains many technical, extremely complicated provisions governing alcohol breath testing and the admissibility of blood alcohol evidence at a DUI trial. And there are literally hundreds of significant judicial decisions that impact directly on DUI cases in Ontario. Without exact knowledge of these decisions as well as the anatomy of Parliament’s complex scheme to combat drunk driving, a defence lawyer cannot effectively represent a person charged with DUI offences. There is a serious risk that the client will be convicted in such cases. For this reason, it is absolutely essential that any person charged with a DUI offence consult with a lawyer who has developed a sharp expertise in this area of the law. Such expertise is gained by long hours of study and years of experience. Many prosecution lawyers have this experience and it is a grave mistake to assume otherwise.
The police are required to comply with a host of technical legal requirements when investigating a person for a DUI offence. An investigating officer can demand a sample of a person’s breath to determine his or her blood alcohol level in very specific circumstances, determined by Parliament. The timing of a police breath demand and any subsequent breath testing is crucial in DUI investigations, as are the arrested individual’s right to confer with counsel and to be advised of his or her constitutional rights. The failure of the police to follow these requirements can result in not guilty verdicts – and often do.
A skilled DUI defence counsel will carefully review the notes and reports of the investigating officer, as well as audio and video recordings captured during the investigation, to ensure that the law has been complied with. Events which seem benign and innocuous to an ordinary criminal lawyer will often stand out as an obvious impropriety or mistake by the police to a skilled DUI lawyer, who will exploit this to the advantage of his or her client.
Over the years, Parliament has made many amendments to the drinking and driving laws in Canada. In 2008, through the enactment of Bill C-2, the federal government made fundamental changes to the law governing “over 80″ prosecutions in this country. On the surface, Bill C-2 created a serious obstacle to successfully defending a charge of driving over the legal limit. Through the enactment of this legislation, the government attempted to limit the extent to which persons charged with this offence could challenge the reliability of alcohol breath testing results generated by approved instruments such as the Intoxilyzer. In 2012, the Supreme Court of Canada upheld the constitutionality of some, but not all, of the Bill C-2 amendments in a case called R. v. St. Onge-Lamoureux. Bill C-2 has undoubtedly altered the landscape of “over 80″ law in Canada. Despite these amendments, however, our experience is that a strong defence can be mounted in the majority of these cases.
The DUI lawyer who is actually able to generate a not guilty result for his or her client must not only have a deep knoweldge of the law and possess vast courtroom experience – he or she must also understand the science of breath testing. The importance of this has increased dramatically since the enactment of Bill C-2 and the Supreme Court’s decision in St.Onge-Lamoureux. In our view, it is imperative for the DUI lawyer to have training on the use and maintenance of approved screening devices (such as the Alcotest 7410 GLC) and approved instruments (such as the Intoxilyzer 8000C). Without this training, defence counsel is at a disadvantage.
Effective DUI lawyers also have a network of experts and forensic consultants to guide them through challenging cases. In some cases, medical conditions may adversely impact a person’s ability to provide a breath sample. In other cases, medical conditions such as diabetes, Crohn’s disease or Gastroesophageal reflux disease (GERD) can trigger unreliable alcohol breath tests. DUI lawyers must understand the physiological foundation for this and have access to physicians and medical experts who are prepared and trained to testify about these conditions.
Lockyer Posner Craig has a small boutique within the firm managed by lawyers who have devoted thousands of hours to the study and defence of DUI charges throughout Ontario, including Toronto, Newmarket, Brampton, London, Windsor, Oshawa, Orillia, Barrie, St. Thomas, Chatham, Belleville, Kingston, and other cities. We have the respect of prosecutors, fellow defence laywer, judges, forensic toxicologists, and medical experts. We have defended hundreds of individuals charged with DUI charges and secured acquittals and withdrawals in a substantial percentage of our cases. Do not hesitate at all to contact us if you would like advice on how we can assist you, a family member or friend navigate through a DUI charge in Ontario.