• Vancouver at night

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. C.L. – Civil Fraud Investigation

Charge: Fraud/Theft from employer.
Issue: Whether it was in the public interest to proceed with criminal charges.
Result: Mr. Johnson was able to negotiate repayment on our client's behalf and obtained a civil release from the employer. No charges were forwarded to Crown counsel. No criminal record.

R. vs. L.M. – Vancouver Provincial Court

Charges: Assault with a weapon; assault causing bodily harm.
Issue: Given elements of provocation, a potential defence of self-defence, and our client's background as a vulnerable woman, whether it was in the public interest for Crown to continue the criminal prosecution.
Result: Mr. mines was able to persuade Crown counsel to enter a stay of proceedings upon our client succesfully completing the Alternative Measures Program. No criminal record.

R. vs. B.L. – New Westminster Supreme Court (jury).

Charges: Assault with a weapon; assault causing bodily harm.
Issue: Given elements of provocation, a potential defence of self-defence, and our client's background as a vulnerable woman, whether it was in the public interest for Crown to continue the criminal prosecution.
Result: Mr. mines was able to persuade Crown counsel to enter a stay of proceedings upon our client successfully completing the Alternative Measures Program. No criminal record.

R. vs. D.D. – Vancouver Provincial Court

Charges: Fraud Over $5000; Theft Over $5000 (from employer).
Issues: Whether Crown counsel could prove the full amount of the alleged theft and whether our client would be sentenced to jail in this breach of trust case.
Result: Mr. Mines was able to persuade Crown counsel that they could only prove a $49,000 theft rather than the $75,000 allegation. After hearing Mr. Mines' submissions, the Court sentenced our client to an 18 month conditional sentence order. No jail.

R. vs. W.W. – North Vancouver Provincial Court

Charge: Assault causing bodily harm.
Issue: Given the information Mr. Gauthier provided to Crown counsel, whether it was in the public interest to proceed with the criminal prosecution.
Result: Crown stayed the proceedings upon our client entering into the Alternative Measures Program. No criminal record.

R. vs. H.K. – Burnaby RCMP Investigation.

Charges: Mischief Under $5000.
Issue: Given the information Mr. Gauthier was able to provide to the RCMP investigator, whether it was in the public interest for police to forward charges to Crown counsel.
Result: Based on the significant collateral consequences that a criminal prosecution would bring to our client, Mr. Gauthier  persuaded police to not forward any criminal charge whatsoever.

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

Charge: Assault causing bodily harm.
Issue: Given the information Mr. Gauthier provided to Crown counsel, whether it was in the public interest to proceed with the criminal prosecution.
Result: Crown stayed the proceedings upon our client entering into the Alternative Measures Program. No criminal record.

R. vs. K.J. – ICBC Fraud Investigation

Charges: Insurance (ICBC) Fraud.
Issue: Whether charges would be forwarded to Crown counsel.
Result: Mr. Gauthier  intervened with the ICBC investigator on our client's behalf and was able to clarify and explain the information that ICBC had flagged as being possibly fraudulent. The matter was resolved with no charges being forwarded to Crown counsel. No prosecution; no criminal record.

R. vs. M.H. – Employee Fraud Investigation

Charges: Theft from Employer.
Issue: Whether the complainant would proceed with a criminal complaint when they discovered $65,000 in fraudulent transactions purportedly committed by our client.
Result: Mr. Johnson was able to successfully negotiate a civil settlement on our client's behalf. No police investigation; no charges; no criminal record.

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

Charge: Assault.
Issue: Given the rehabilitative steps we were able to guide our client through, 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 upon our client completing the Alternative Measures Program. No criminal Record.

R. vs. N.A. – Vancouver Traffic Court

Charges: Speeding (MVA).
Issue: Whether the police officer could prove that our client was speeding, and whether it was in the public interest to proceed with the trial.
Result: Mr. Gauthier was able to provide information to the police investigator that led to the officer withdrawing the violation ticket prior to the trial. The lack of this conviction prevented our client from a significant driving prohibition.

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

Charges: Aggravated assault; assault with a weapon.,br> Issue: Given the information Mr. Johnson was able to provide to Crown counsel, whether it was appropriate to contnue with the prosecution on the approved charges.
Result: Mr. Johnson was able to persuade Crown counsel to proceed on the lesser charge of assault causing bodily harm. After hearing Mr. Johnson's submissions on our client's behalf, the trail judge sentenced our client to a suspended sentence with 24 months probation. Our client was able to avoid a lengthy jail sentence.

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.