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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. vs. B.K. – Port Coquitlam Provincial Court

Charge: Assault.
Issue: Whether it was in the public interest for our client to be granted a conditional discharge.
Result: Mr. Gauthier was able to persuade Crown counsel to make a joint submission without the necessity of our client being required to complete counselling. After hearing Mr. Gauthier's submissions the court granted our client the discharge. No criminal conviction.

R. v. R.L. – New Westminster Supreme Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to continue with the prosecution in this retrial after a deadlocked jury decision.
Result: upon considering all of Mr. Mines' representations, Crown counsel entered a stay of proceedings. No jail. No criminal record.

R. vs. J.H. – Richmond Provincial Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to continue with the prosecution in this retrial after a deadlocked jury decision.
Result: upon considering all of Mr. Mines' representations, Crown counsel entered a stay of proceedings. No jail. No criminal record.

R. vs. B.J. – Downtown Community Court

Charge: Theft of property of a value not exceeding $5,000
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Johnston identified weaknesses in the available video evidence which persuaded the Crown to direct a stay of proceedings on the charge. No jail. No criminal record.

R. vs. A.M. = Vancouver Provincial Court

Charges: Assault with a Weapon; Assault Causing Bodily Harm.
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Johnston provided Crown counsel with information about our client’s circumstances, including his lack of prior criminal offending, his efforts at rehabilitation, and the fact that a conviction for either offence could result in the client’s deportation, an outcome which Mr. Johnston argued would be disproportionate to the seriousness of alleged offences. At the same time, Mr. Johnston pointed out weaknesses in the evidence against our client. The Crown directed stays of proceedings on both charges. No jail. No criminal record.

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

Charges: Uttering Threats x3; Criminal Harassment; Breach of Release Order (domestic).
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution of these matters.
Result: Mr. Gauthier was able to persuade Crown counsel that it was more appropriate to deal with these matters in the context of Family Court. Ultimately Crown did not approve the uttering threats and criminal harassment charges and Mr. Gauthier persuaded Crown that there was no public interest in prosecuting the breach charge and to enter a stay of proceedings. No jail. No criminal record.

R. vs. K.L. – Terrace RCMP Investigation

Charges: Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Mines presented additional information to Crown counsel which resulted in Crown  declining to approve any charge.  No criminal record.

R. vs. O.P. – Victoria Provincial Court

Charges: Voyeurism; Criminal harassment.
Issue: Whether Crown could prove that our client actually recorded and distributed images without consent of the complainant.
Result: Mr. Gauthier was able to persuade Crown counsel to proceed only on the criminal harassment charge. After hearing Mr. Gauthier's submissions, the trial judge granted our client a conditional sentence order with a curfew for two months. No jail.

R. vs. T.B. – Vancouver Provincial Court

Charges: Indecent Act; Assault With a Weapon; Possessing of a Weapon for Dangerous Purpose (x2); Robbery; Uttering Threats; Theft of Property of a Value not Exceeding $5,000.
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with prosecution of all counts; whether a jail sentence was appropriate.
Result: Mr. Johnston identified weaknesses in the evidence which persuaded the Crown there was no reasonable prospect of conviction on the Indecent Act charge.  Mr. Johnston persuaded Crown counsel  to resolve the case on three of the remaining counts and to stay all remaining charges. After hearing Mr. Johnston's submissions regarding our client's personal circumstances and his significant rehabilitation efforts,  the Court agreed to release our client from custody and to place him on a probation order with conditions supporting his rehabilitation. No further jail time.

R. vs. M.G. – RCMP Investigation

Charges: Possession for the purpose of trafficking.
Issue: Whether there was a substantial likelihood that Crown could establish that our client was a willing participant in the alleged drug trafficking scheme.
Result: Mr. Mines was able to provide information and persuade police to not seek any criminal charges against our client. No No charges were approved. Our client's vehicle was retuned. No criminal record.

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

Charges: Assault.
Issue: Whether there was a reasonable likelihood of a conviction and whether it was in the public interest to proceed.
Result: Mr. Mines was able to provide additional information and persuaded Crown counsel stay the charge upon our client completing the Alternative Measures Program. No criminal record.  

R. vs. K.L. – Vancouver Police Investigation

Charge: Assault Peace Officer.
Issue: Whether there was a substantial likelihood of a conviction in this case which involved an alleged assault of a police officer.
Result: Mr. Gauthier provided information and a video to Crown counsel which showed that the police made an unlawful arrest thereby giving our client lawful grounds to defend himself. Mr. Gauthier was able to persuade Crown to not approve any charges. 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.