Canadian Impaired Driving Laws
Impaired Driving Myth
One of the biggest myths about impaired driving is that one is guilty as soon as they are charged, because of the readings of a breathalyzer machine. Many people think that breathalyzer machines – and the police officers that use them – are free from mistakes and error. However, this is not true.
Further, in Canada there is a vital principle and right upon which our Justice system is based, and is supposedly guaranteed in the Canadian Charter Of Rights And Freedoms:
“Any person charged with an offence has the right:
d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”
~ Section 11
One of the problems with the charge of Impaired Driving or a DUI is the fact that this is quite a “technical” charge against an accused. Often, each individual charge can take a great deal of time to research and find a defense to the charge. Therefore, it costs quite a bit of money, and the way our present system is set up, where previous defenses have been removed by legislative act, even a strong defense and the presence of some doubt on the charge can still result in a conviction.
However, if you have been charged with an alcohol related driving offense, you should see a lawyer! Even if you decide to plead guilty, a lawyer can help you with many issues that may come up in court, including sentencing.
Posted in Canadian Impaired Driving Laws, Impaired Driving | 
Tags: DUI Lawyers, impaired driving charge | 
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Roadside Breathalyzers Margin Of Error – Could You Be Innocent?
Apparently, the roadside breathalyers that Police use in British Columbia can have a margin of error that could record a higher blood alcohol concentration reading than what a driver actually has. This could have significant effects on drivers who are stopped under the new regulations in BC.
According to Ethan Barron, columnist for The Province, Cpl. Jamie Chung of the BC RCMP Traffic Services has “admitted that because of the margin of error, a person below the legal .05 limit — at .046 for example — could produce a “warn” reading and have their licence immediately suspended, their vehicle seized, and the fines and fees imposed.”
It gets worse, too:
“Ministry of Public Safety and solicitor-general spokesman Ian Indridson said the error margin of the roadside devices is not factored in when penalties are imposed because the devices are tested every 28 days and recalibrated if necessary.
[..]
Drivers given administrative penalties who appeal to the OSMV may get an unfair hearing from the adjudicator, Mansoori-Dara said.
“[Some adjudicators] don’t understand the evidence, and yet they go ahead and uphold these prohibitions,” Mansoori-Dara said.
On Monday, a B.C. Supreme Court judge overturned the licence suspension of a man who failed a roadside breathalyzer test in Fort Nelson, on the basis that the OSMV adjudicator improperly interpreted breathalyzer-related evidence.”
When you consider the penalties for a an offense under BC’s regulations, which include an immediate roadside license suspension for three days, vehicle seizure and impoundment for three days plus towing costs and a fine of $200.00 and a license reinstatement fee of $250.00, it seems that this is not a very just system when a person is punished before they can defend themselves against the charges.
Related Posts:
More MADD Opinion – Random Breath Tests & Ireland
As I reported previously, MADD Canada appears to support the idea of random breath testing for drivers by police officers. Random in Canada means stopping drivers and demanding a breath sample without any reasonable and probable grounds that a driver may be impaired or consumed alcohol above the legal limit.
I’ve already pointed out the slippery slope we are on if the Criminal Code is changed to allow Canadian Police officers to randomly test drivers without having reasonable grounds to do so in this post, Are Random Breath Tests Coming?
Today, I came across an article in The Toronto Sun which again reports on the opinion of a MADD Canada representative, this time MADD CEO Andrew Murie:
“Murie sites countries that have RBT — Australia, France, Germany, New Zealand and Ireland are some — pointing out they have seen less and less carnage on their roadways.”
~ Source
Andrew Murie’s comparison to other countries is a logical fallacy. Just because other countries have legislation that provides for certain regulations does mean the process is right. We could compare ourselves to lots of countries that have laws and regulations that purport to “protect” people or the common good. That doesn’t mean that the comparison is correct or that we should follow suit.
As well, is the comparison a valid one in the first place? Let’s take a look at Ireland – one of the countries Andrew Murie brings up.
In Ireland, they do have what they call “random breath testing.” It should also be pointed out that Ireland does not recognize the right of a person accused of their version of impaired or “drink driving” to immediately and without delay, obtain legal council. You can read more about that here.
In Canada, we do recognize the right of an accused to legal council without delay. Because Ireland does not recognize that right, should we also remove that right? See what can happen when we make glib comparisons?
But let’s look even further at what Ireland calls “Random Testing.” It’s not exactly the situation where a police officer can just randomly pull people over and demand a sample of breath to be blown into a breathalizer. Instead, these “random” tests can only be done at checkpoints that are set up and approved beforehand by an Inspector of the Irish Police force (the national police force in Ireland is called “The Garda“).
According to the Government of Ireland website:
“The power can however only be exercised at checkpoints which have been authorised by a Garda Inspector. These checkpoints are specifically designed for the purpose of mandatory alcohol testing. The authorisation must be given by the Inspector in writing and allows Gardai to set up a checkpoint in a public place (or another place).”
As well, the law in Ireland prohibits the Police from simply pulling over drivers and demanding breath samples:
“Can a Garda stop me randomly while in traffic and breathalyse me?
No. The Road Traffic Act 2006 does not give the Gardai the power to pull cars over while in traffic and breathalyse the driver randomly. It only gives the Gardai the power to conduct checkpoints for the purpose of random breath testing. If however, the Garda has formed the opinion that you have committed any road traffic offence, or that you have been involved in a road traffic accident, or is of the opinion that you have consumed alcohol then they can stop you in traffic and breathalyse you under the powers given by the Road Traffic Act 2002.”
Further, there are restrictions on these checkpoints as well, although they can be set up on any public road.
As pointed out above, the checkpoint must be approved by a Garda Inspector beforehand, and this must be in writing. As well, “So, basically they can conduct checkpoints on main roads, outside pubs or night clubs or anywhere else they feel will reduce the number of drink drivers on the road. The Gardai are however obliged to exercise these powers in a proportional manner.” (Emphasis mine).
So, be careful when you hear or read comparisons to other countries. Do you want to live in a country that denies the right to legal council when you are accused of committing a criminal act? Ireland does that when it comes to “drink driving.” And take note that their “random breath testing” is fairly close to what we already have in Canada – regular spotchecks where the Police stop vehicles, smell your breath, and if they can prove reasonable grounds, demand a sample of your breath.
Again, I’m all for reducing the number of impaired drivers on our roads, but I’m not in favour of heading down slippery slopes where rights are infringed upon all in the name of “public safety” especially where the consequences of a criminal record are concerned.
Are Random Alcohol Breath Tests Coming?
Although some countries such as Ireland have instituted “random” breath tests for drivers, North America (Canada and the US) have not given this power to police forces to randomly top vehicles and demand a breath sample. In Canada, a peace or police officer may demand a breath sample from a driver if the police or peace officer has “reasonable grounds” to suspect that the driver is impaired.
Some such as MADD Canada want the government to change the law in Canada so that police officers may randomly demand breath samples from drivers without any reasonable grounds or suspicion of impairment. In an article in the Enfield Weekly Press, Margaret Miller who is a past President of MADD Canada and presently the President of the local chapter of MADD Cobequid is quoted:
“Miller said it wouldn’t give police any more power than they have now when they pull a vehicle over and ask the driver for their license and registration.
“They can say to the person we need you to provide a breath sample,” she said. “This would eliminate the possibility that you’re driving impaired.”
[..]
She admitted not everyone is supportive of the idea and that there are critics of the move to what some deem as an invasion of their privacy.
“The only ones who aren’t behind this are those who think this is violating their right,” Miller said. “Driving has never been a right. It’s always been a privilege. It’s a heavily-regulated activity that the infringement is no greater than what you will get on a plane.”"
Although many will use an argument about “safety” and “the common good” when attempting to persuade for new laws and regulations, they often seem to forget some very important facts and what our society bases itself upon. That is the concept of individual freedom from the government and the right to be able to live without government interference.
Admittedly, our public roads are administered by government, and they have the force and ability to enforce regulations including speed limits, vehicle safety standards, and more. In this, driving on a public road is not a “right.” Some explain driving as a “privilege.” It is in this way that police officers may ask for and demand from drivers their license, vehicle registration and insurance certificate.
However, in Canada, Impaired Driving is a criminal offense and carries severe penalties including a criminal record. The consequences are severe, and making accusations of a criminal offense must be taken just as seriously as the repercussions. Demanding that Police Officers have reasonable and probable grounds have deep rooted and well established reasons that are part of the very basics of our society.
In requiring a government agent who is granted special powers over citizens to prove “reasonable and probable” grounds is a protection for citizens against encroachment upon individual liberty. Police officers are just like everyone else – they have their own biases, dislikes, and can make mistakes. They may even have not assured that the equipment and devices they use are properly maintained to correct standards.
In removing “reasonable and probable” grounds, we are then allowing more infringement upon the rights of individuals to be free from government intrusion in their lives.
I am not suggesting that it is not important to reduce the number of impaired drivers on our public roads. But as long as impaired driving remains a criminal charge, then as far as I’m concerned, police officers must prove reasonable and probable grounds.
As well, Margaret Miller is dead wrong when she says, “Miller said it wouldn’t give police any more power than they have now when they pull a vehicle over and ask the driver for their license and registration.” For one thing, a driver is usually issued a Provincial Offenses Notice for not having their driver’s license with them and may choose to defend themselves in Court before fines and punishment is meted out. What Miller proposes is that upon a piece of equipment (who knows how well it has been maintained or calibrated, or cleaned) being presented to a driver at random, and that piece of equipment presents what is apparently a BAC reading, the police officer then has to physically remove the driver’s license of the driver, and initiate punishment against the driver without any recourse to challenging the evidence. How this is not giving more power to police officers is beyond me.
If we allow an exemption for this criminal offense based on “public safety,” then where do we stop and when do we become a “police state” when the government can stop us, infringe upon our movement and our life at whatever whim, with the emotional argument of “public safety” as the cause?
Nova Scotia Tightens Drinking & Driving Regulations
Following Provinces such as British Columbia, the Canadian Province of Nova Scotia recently introduced new regulations that will affect how drivers choose to consume alcohol before getting behind the wheel of a vehicle.
Although the Federal Canadian government’s Criminal Code has a limit of 0.08 mg of alcohol per 100 ml of blood, Provinces are free to enact their own lower limits while driving on Provincial roads and highways. Although a lower limit will carry Provincial penalties, it will not carry criminal charges. However, the penalties can be stiff and some suggest the new regulations Provinces are introducing give police and law enforcement too much power in that penalties begin as soon as a driver is charged instead of waiting for a trial. In effect, our police are being given judicial powers.
As of October 26, 2010, Nova Scotia drivers are subject to an automatic 7 day driver license suspension if they are asked by a Police Officer to provide a breath sample, and the machine registers a BAC of between 0.05 and 0.08%. As well, there is a license reinstatement fee of $89.63.
A second offense in Nova Scotia carries an automatic license suspension of 30 days.
Of course, many believe that these new regulations that Provinces are enacting are a bit draconian and go after the wrong drivers.
Care & Control – Impaired Driving In Canada
There is often a misunderstanding among Canadians in regard to the charge of Impaired Driving. Many believe that the charge applies only when driving on public roads. This is simply not true.
Let’s take a look at the applicable section of the Canadian Criminal Code, Section 353:
Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,
I want you to note carefully, “or has the care or control of…”
It is essential to understand what this means so you can know under what circustances you could be charged under this criminal offense.
Have you ever had a few beers while you washed your vehicle in the driveway with the keys in the ignition, listening to tunes from the radio? Do you know if you were under the legal limit for blood alcohol concentration? Do you know if you would have been considered “impaired” by a peace officer while washing your car?
Legally, you have care and control of the vehicle, and if a police officer can prove he/she had reasonable grounds, they may enter upon your property and demand a sample of your breath. If you have a BAC of higher than 0.08 mg per 100 ml blood (over 80), you can be charged criminally in the very same way, and if convicted, have the very same penalties imposed upon you as someone who was actually driving on the road.
Another example of “care and control” could even mean you have the keys in the ignition so you could listen to tunes while raking leaves on your property. While raking leaves, you have several beers which put you over the legal BAC limit. A police officer that can prove reasonable grounds for demanding a breath sample, and finding you over .08%, can charge you with this criminal offense.
You don’t even have to have the keys in the ignition. You could simply have them in your pocket and be standing near your vehicle. Or, you could be inside your house, have drinks with some friends, and decide to show your friends the new golf clubs you bought today. But they are in the trunk. You go outside to retrieve the golf clubs from your trunk – you now have “care and control” of your vehicle and have committed an offense.
You may not find this “fair,” (this post is not my place at this time for opinion), but you ought to be aware that whether or not you think it is fair, it is the law – criminal law – with serious repercussions.
If you’ve been charged with Impaired Driving in Canada under any circumstances, it is highly recommended that you seek legal council of a lawyer that has experience in defending against these charges in Canada.
Getting A Pardon In Canada For Impaired Driving Conviction
One of the benefits of taking the education class of the Back On Track Program, as I wrote the other day, was that as well as alcohol education, there was education and information about Canadian law as well as the process of obtaining a pardon in Canada. Some of this information I knew previously due to the area of work I was employed in for over ten years. But there was obviously some confusion in a number of people’s minds about criminal law and pardons in Canada.
Canada’s Criminal Code is administered federally and only the Federal Government has jurisdiction to enact, modify, change or remove criminal law. It applies all across Canada whether you live in British Columbia, Yukon, Ontario, Newfoundland or whatever Province or Territory you reside in. This is somewhat different than American law in that individual States can enact their own laws that would be similar to what we consider “Criminal Law” here in Canada. In the US, individual States can enact laws that are classified and misdemeanors or felonies and have full jurisdiction over the penalties for offenses against those laws.
First, Canada has three “levels” or types of criminal law. This is important to understand. They are:
1. Indictable Offenses
2. Summary Offenses
3. Dual Procedure Offenses.
Indictable Offenses
Indictable offense are those that are considered “serious” criminal offenses (although all criminal convictions can carry serious consequences). Indictable offenses are those offenses that are very serious. Murder would be an indictable offense.
Summary Conviction Offenses
A summary offense are those that are considered “less-serious.” A citizen cannot legally make a “citizen’s arrest” for a summary offense (unless the citizen believes a person is in the process of fleeing someone who has the legal right to make an arrest for a summary conviction offense and is in fresh pursuit. Summary conviction offenses include things like “communicate for the purpose of obtaining the sexual services of a prostitute” or “harassing phone calls.”
Dual Procedure Offenses
In Canada, there are some Criminal Code offenses that may be tried as either Indictable or Summary conviction. The Crown may elect, depending on the circumstances of the alleged crime, on whether to proceed as a more serious or less serious offense. The options available to a judge upon sentencing can be quite different – depending on how the charge is tried. As well, an accused in Canada has the right to elect to be tried by Judge And Jury for Indictable Offenses, but Judge and Jury is not available for Summary Conviction offenses.
This is important for those who have been convicted of an alcohol related offense in Canada, and how it affects their options for applying for a pardon.
Most drivers who face their first charge of an alcohol related driving offense in Canada are charged summarily. There are exceptions: If you are charged with Impaired Driving Causing Death or Impaired Driving Causing Injury, you will likely be charged as an Indictable Offense.
If you are a repeat offender of an alcohol related driving offense that does not include death or injury, the Crown may elect to proceed with indictable charges against you.
How you are charged affects how long a period of time goes by before you can apply for a pardon.
Length of Time Before Applying For a Pardon
SUMMARY CONVICTION
For summary conviction offenses, the time period is 3 years before you may apply for a pardon. For indictable offenses, the time is 5 years. But this not from the time of the offense or the time of conviction, rather the length of time from when you completed your sentence.
For the purposes of a pardon, the driver’s license suspension is not included as part of the sentencing. However, the fines, any jail time, court ordered restitution, and probation are included.
Let’s look at an example:
You are charged with Impaired Driving on April 22, 2010. On August 30, 2010, you are convicted and sentenced on that date to:
$1,500.00 fine
$1,000.00 restitution
6 months year probation
1 year driver’s license suspension.
If you pay your fine and restitution immediately, but are still on probation for six months, you will be able to apply for a pardon 3 years after your probation ended, in this case, three years after February 28, 2011.
INDICTABLE
If you were charged with an indictable offense (as noted above, death or injury were involved), you must wait 5 years after all of your sentencing is complete before you may apply for a pardon. If you were charged April 22, 2010 and were convicted and sentenced on August 30, 2010 and part of your sentence was a four year jail term, then you must wait for five years to expire after your jail term is complete (assuming you’ve paid the fine and any other court ordered payments by this time as well) before you may apply for a pardon.
How To Apply For A Pardon
For some people, seeking the services of a lawyer or professional organization that assists in obtaining pardons may be the best way. However, you do not need or are required to use a lawyer or business to apply for your pardon. Many lawyers and businesses that specialize in helping you get a pardon will charge quite a bit more than what you’ll pay if you do it on your own. As well, these businesses and lawyers cannot speed up the pardon process. If they claim they can, be aware and run from them. What they can help you with is filling out the necessary paperwork and guiding you along in the process. There are some things you are going to be required to do on your own (like have your fingerprints done, as an example).
You apply for a pardon in Canada to the Canadian Parole Board. That is the ultimately the only place who can grant pardons in Canada, as where all pardon applications go. The Canadian Parole Board does have a guide on how to obtain a pardon along with the application form, down loadable from their website.
If you apply for a pardon on your own, it will cost you $50.00 to submit the application and $25.00 to obtain your Proof of Criminal Record from the RCMP.
Full information including FAQ’s are available here.
Quebec Police Chief Charged With Impaired Driving
The community of Levis, Quebec is talking about the news of their Police Chief being charged with Impaired Driving. Police Chief Jean-Francois Roy, who is 55 years old, was arrested in Quebec City, PQ. He was behind the wheel of an unmarked police cruiser at the time of his alleged impaired driving on Wednesday, September 29, 2010, just after 11PM.
The Mayor of Levis has suspended Roy from his police chief duties as well as demanding he turn over his service weapon. Roy’s deputy chief will be replacing him at this time.
It is alleged that Roy had more than twice the legal limit of alcohol in his blood after he was arrested and was administered an alcohol breath test.
The community of Levis is located across the St. Lawrence River from Quebec City.
Full story at Montreal Gazette.
Posted in Canadian Impaired Driving Laws, Impaired Driving | Tags: levis quebec, Police Chief Jean-Francois Roy, police dui | No Comments »
BC’s New Impaired Driving Laws And MADD
On September 21st, 2010, I reported on the fact that the Province of British Columbia had enacted tough new provincial regulations in regard to drinking and driving. In effect, BC has lowered the maximum BAC level to 0.05 when penalties kick in. You can read that post here to see what the new penalties are and how it might affect you.
Now, according to the Vancouver Sun, Marita Maas who is a board member of Vancouver’s MADD is reported as saying,
“MADD has never been prohibitionists. We don’t have a problem with social drinking. The problem is when people drink to excess.”
MADD is apparently responding to critics of BC’s new provincial laws, suggesting that social drinkers who enjoy one or two drinks have nothing to fear from the new regulations.
The problem however is that no one really knows on an individual basis how many drinks it will take to reach any Blood Alcohol Concentration (BAC). There are so many variables that even include body temperature, the temperature of the air in the lungs, menstrual cycles, circadian rhythms, and metabolic rates, just to name a few.
As well, there is the issue of giving the Police judicial powers to impound vehicles and hand out license suspensions before the allegations are even proven in court. One thing that very well may become an issue in BC’s new laws are how accurately the true BAC was measured. In criminal investigations, it is required in Canada that an Intoxilyzer breath test be administered twice, the second about 20 minutes later after the first one.
One of the reasons for this is to account for any “mouth alcohol” that may be present during the first intoxilyzer test that may overstate the Blood Alcohol Concentration.
In a roadside administered test, will the Police be asking the motorist to provide a second sample 20 minutes later in order to discount mouth alcohol present during the first test?
If a driver goes into a pub and has a shot of whiskey, leaves the pub and three minutes later is asked to blow into a roadside screening device by police in British Columbia, will there be any appeals allowed by the driver to have a second test administered 20 minutes later if the driver happens to blow 0.06?
I don’t have the answers to that question, but as serious as drinking and driving or driving under the influence is, I am also very uncomfortable with giving police officers what amounts to judicial powers where a legal defense cannot be mounted before punishment is meted out. Drivers will not be able to seek a defense and demand to see calibration records for the roadside breath testing device, and it is very possible that the equipment may not be calibrated, or is damaged, or some other circumstance such as mouth alcohol that is not accounted for.
As much as it is a great idea to have roads where drivers are not impaired, legal punishment and penalties before a fair trial before an impartial judge and/or jury can hear a case and make judgement is a very slippery slope.
HT: Mr. DUI
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Posted in Canadian Impaired Driving Laws | Tags: british columbia impaired laws, dui penalties, madd, marita maas | 1 Comment »
Getting My License Back After The DUI
As I’ve written previously, in Ontario a new program came into effect earlier this year, where if your guilty plea was entered on or after August 3, 2010, you plead guilty within 90 days of the alcohol related driving charge, and your fines are all paid up, it is possible to apply for an early reinstatement of your license. In fact, instead of waiting a full year, it might be possible to have it reinstated after three months.
It also must be your first offense. As well, you must have had at least the “Assessment” portion of the Back On Track Remedial program completed.
I’m still trying to work out the details, as now I am apparently eligible to apply to have my license reinstated. But there are some problems:
First, I don’t know if I’ll even have a vehicle on the date I’ll be able to get it back. The vehicle I was driving was written off by the insurance company, and they estimated over $14,000.00 in damages.
I’m not sure I could afford insurance after the DUI or Impaired Driving conviction.
I’m still paying on a bank loan for the vehicle – because I was convicted of an alcohol related driving offense, my insurance company views that as a breach of contract and therefore they are not going to pay the bank the balance of what is owing. I’ve got another 4 1/2 years to pay the loan off.
To be quite blunt, I am close to going bankrupt after all of the bills have come in, the fine and restitution has been paid, and I’ve not been able to keep up with my other debts. My income has suffered dramatically since the accident and impaired driving charge. With no vehicle, it’s been tough to get out there and call on clients and potential clients.
Having said that, there are some possibilities. At this point, it is my understanding that now that I’ve completed the Back On Track assessment, and my $1,300.00 fine is paid in full, I should be able to call Guardian Interlock and get a contract with them. It seems to me that I don’t actually have to have a vehicle to install the ignition interlock in, but I do need to provide proof of a contract with the company for one of their interlock devices.
Then, I can apply for my licence back, and when it is returned to me, it will have an “I” on it, which means I am not to drive any vehicle that does not have an ignition interlock installed. But at least I could have my license back, which would give me some options going forward.
My vehicle is at the premises of what I’m told a pretty good auto body mechanic. There is some possibility he could fix up my vehicle for a lot less than what the insurance company estimated the damages to be – but it’s still going to be a hefty price to pay in my present financial situation. But at least I’d have a vehicle that I wouldn’t feel so bad about making payments on.
If my financial situation improves, and I can then also afford the vehicle insurance, I’d have a vehicle to drive when that happens.
Tomorrow, I’m hoping to give Guardian Interlock a call to see what they have to say about getting a contract and what that entails.
I’ll post more as I learn more.
All this could have been avoided if I had my own personal breathalyzer. It would have been a much smaller price to pay than what I have paid after getting behind the wheel and thinking I was fine to drive.