Impaired Driving Legal Stuff
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.
Drunk Driving Regulations – Innocent Until Proven Guilty?
As someone who has been convicted of impaired driving, I do understand the need to reduce drunk driving as much as we can. I can also understand to a degree the lobbying done by groups like MADD and the ideas of some people that there ought to be, in the name of “public safety,” stricter rules and penalties as a deterrent.
However, I am concerned by those who wish to give enforcement officers the powers of the judiciary. There seems to be a growing trend among many in North America and including our law makers that seem to ignore the very basis of what our justice system has been founded upon. The notion that a person accused of a crime has the choice to mount a vigorous defense against the charges and that the State must prove guilt before punishment is meted out.
The great thinkers in history that understood that true liberalism (not the sort of “Liberalism” espoused by political parties like the Liberal Party, and not the sort that is often defined in political debates in the US) is the foundation of individual freedoms that include the right to be free from State incursions and activities that occur in countries where there is little difference between the judiciary and the police.
Most people in our society believe that innocence until proof of guilt is a cornerstone of our society. In this, historically the need to separate enforcement from the judiciary has been known to be vital. But in some areas, in the name of “public saftey,” we’ve allowed the enforcement agencies to have judicial powers that would cause someone to suffer consequences or penalties before guilt has been proven.
Finally, one police officer recognizes this: In an article published by The Province, Vancouver Police Union president Tom Stamatakis is quoted as saying:
“Even if you support the change of regulations, I don’t think any of us support the fact that we’ve now become the judge and the jury. Our job is to enforce the law and another part of our criminal justice system should be dealing with the guilt or innocence thing and imposing what the penalties should be.”
Tom Stamatakis is speaking in regard to the new BC drinking and driving laws that recently came into place, where Police Officers are now given the responsibility of suspending driver’s licenses and siezing vehicles among other things when they have determined someone has been drinking and their blood alcohol level is at a arbitrary amount, set by the Province of British Government.
In this type of offense, there is no or little means by which a driver may fight or defend them self prior to punishment or penalty. There is no way for a driver to have the State (in Canada, it’s ‘The Crown’) prove the charges in front of a judge and/or judge and jury before they suffer consequences. There is no way for the driver to challenge whether or not the equipment used to measure the blood alcohol level was in good working condition.
Some may suggest that police officers always routinely ensure such equipment is in good working order, however this is not the case. Police officers are just as human as you and I are, and are subject to the same pressures and day to day actions which can cause mistakes. Sometimes, police officers are careless. Sometimes, in order to “just get out on the road,” certain things they should do are not done correctly out of haste. It can and does happen. This is when a person charged with an offense should have the right, as our forefathers recognized, to have an opportunity to mount a defense and question the evidence if we want to say we live in a “Just” society.
So what about the whole issue of “public safety?” Is there a valid argument that there are some cases, such as impaired driving, where “public safety” supercedes the right to a trial and the ability to challenge the evidence?
I say there is no valid argument. Instead, I would ask the question, “What about public safety when we have even just a few police officers, who have their own biases, opinions, and pressures, meting out penalties where the evidence is not allowed to be questioned?”
What happens to “public safety” the more we give police officers judicial powers and citizens have no rights to defend themselves? There is a far greater public safety issue if we accept that police officers – or any other agents of the State – have the ability to make charges and then mete out punishment before the accused can defend themselves in front of an impartial party.
Related Posts
British Columbia Introduces Stricter Drinking & Driving Penalties
Posted in Impaired Driving Legal Stuff | 
Tags: british columbia impaired laws, madd, Manon Groulx, Tom Stamatakis, Vancouver Police | 
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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.
Offices Of Ontario’s Back On Track Program
After I was charged with Impaired Driving in Ontario, I became aware that I would be required to register for and participate in Ontario’s Back On Track remedial program. As mentioned previously, this program is a three part program with a follow up interview that is required in order to have your driver’s license reinstated in this Province.
When I tried to research this program, I found very few details and couldn’t even find out where I would have to attend the program. The offices are not listed on the Back On Track website.
After I was convicted, I registered for the program and the other day, I received a notice in the mail advising me that my fee had been processed. The notice advised me that it was now my responsibility to contact one of the providers of the Back On Track Program to arrange for my Assessment and further participation in the program.
According to the notice, the following are the offices in the Province of Ontario of the Back On Track providers. Locations marked with an asterisk provide the program in the French language as well as English:
Southern Ontario
Aurora / Newmarket
Addiction Service for York Region
Tel: 905.841.7007 ext. 331
Barrie*
Simcoe Outreach Services
Tel: 705.726.7062
Bellville
Addictions Centre (Hastings/Prince Edward Counties) Inc.
Tel: 613.969.8893
Brampton / Mississauga (Peel)*
Peel Addiction Assessment & Referral Centre (PAARC)
Tel: 905.626.4927
Brantford
St. Leonard’s Community Services
Tel: 519.754.0253 ext. 327
Burlington / Oakville
ADAPT Halton (Alcohol and Drug Assessment Prevention & Treatment)
Tel: 905.467.6537
Cornwall*
Addiction Services of Eastern Ontario
Tel: 613.936.9236
Guelph / Kitchener
John Howard Society of Waterloo-Wellington
Tel: 519-836.1501 ext. 200 (Guelph)
Tel: 519.743.6071 ext. 305 (Kitchener)
Hamilton*
Alcohol, Drug and Gambling Services
Tel: 905.546.3605
Kingston
Frontenac Community Mental Health Services
Options For Change
Tel: 613.544.1356
London*
Addiction Services of Thames Valley
Tel: 519.673.3130
Oshawa
Pinewood Centre
Tel: 905.723.8195 ext. 211
Ottawa*
Sandy Hill Community Health Centre
Tel: 613.244.2827
Pembroke / Renfrew*
Pathways Alcohol and Drug Treatment Services
Tel: 613.432.8573
Peterborough
Four Counties Addiction Services
Tel: 705.876.1292
Sarnia
Lambton County Addiction Services
Tel: 519.464.4500 ext. 5370
St. Catherines*
Community Addiction Service of Niagara
Tel: 905.641.0845
Stratford / Owen Sound
Choices For Change
Tel: 519.271.6730 ext. 40
Smiths Falls / Brockville
Tri County Addiction Services
Tel: 613.283.2404
Toronto*
Centre For Addiction and Mental Health
Tel: 416.535.8501 ext. 6138
Windsor*
Essex County Addiction Assessment Referral Service
Tel: 519.257.5111 ext. 76940
NORTHERN ONTARIO
Bracebridge / Parry Sound
Addiction Outreach
Muskoka Parry Sound
Bracebridge Tel: 705.645.1311
Parry Sound Tel: 705.746.7113
Kenora*
Lake of the Woods Addictions Services
Tel: 807.467.3555
North Bay*
Community Counselling Centre of Nipissing
Tel: 705.472.6515
Sault Ste Marie*
Algoma Public Health
Tel: 705.759.1844
Sudbury*
Sudbury Counselling Centre
Tel: 705.524.9629 ext. 206
Thunder Bay*
Thunder Bay Counselling Centre
Assessments – Tel: 807.684.1880
Messages After Hours – Tel: 807.684.1877
Sister Margaret Smith Centre
Course – 807.684.5113
Timmins*
South Cochrane Addiction Services
Tel: 705.264.5202
So there you have it – the full list of service providers of the Back On Track Remedial program in Ontario. If you live in a remote location, somehow you have to get to your appointments, on time and of course, you can’t drive there yourself.
You could save yourself the trouble of ever having an Impaired Charge by getting your own personal breathalyzer!
Pleaded Guilty To Impaired Driving
After much discussion with my lawyer, I decided to plead guilty to the Impaired Driving (DUI in the US) charge. I attended court dressed in my black suit and stood in front of Her Honour and when she asked me how I was pleading to the charge, I hung my head and said “Guilty.” It felt weird. I’m now a criminal.
The reasons for pleading guilty were many, but included the fact that mounting a defense would cost me money I do not have right now. The only way to mount a defense was a technical one and it was likely to cost me between 10 and 15 thousand dollars. And even then, there was no guarantee that I would be found not guilty of drunk driving or have it reduced to a careless driving.
There was another consideration as well: The Province of Ontario has just recently announced a new program that begins August 3, 2010. If you meet the following criteria, you can apply to the Ministry of Transportation for the Ignition Interlock program after just three months instead of waiting an entire year. From my understanding the following conditions will apply:
1. It must be your first impaired driving offence.
2. You must plead guilty and be sentenced within 90 days.
3. Applies to drivers sentenced on or after August 3, 2010.
In other words, if you do not plead guilty, but are later found guilty by the court, you will not have the option to apply for the interlock program after three months, and must wait the full year as far as I understand. They system is streamlining this so that there is a higher conviction rate and lower numbers of drivers fighting their impaired driving charges in the Province of Ontario.
I’m not sure if Guardian Interlock is a publicly traded company, but if it is, it might be a good time to buy stock.
I will be back in Court on August 3 to receive my sentence. That is also the date when the conviction will be registered. So it is possible that if I have access to a vehicle in November and have an ignition interlock device installed, that I could be able to drive again then.
As I wrote, it was very weird to plead guilty in Court. The mixture of feelings, including regret, disbelief, that the bad dream was continuing are hard to explain. I am trying to move on from the entire incident but there are days when I still feel like a loser for what happened.
I also want to apologize to the occupants of the house I hit, but my lawyer has advised me that I should wait until all legal proceedings in the matter are resolved. But I do wish they knew right now that I am very sorry for what happened.
You can read more about my story and about how you can save yourself from drunk driving penalties.
How Do I Get To Court?
I am not asking for or looking for sympathy. I’ll figure this out.
When I was charged with Impaired Driving, the Ontario Government took away my driver’s license. One of the very few charges where you are punished before you are found guilty.
My court date is next week. Court is an hour and a half drive from where I live. There is NO public transportation. I had made arrangements with a relative and a girlfriend to get me there. But it hasn’t worked out so well.
My girlfriend was offered a job (that she desperately needs) conditional that she start immediately and also be able to work some days – that just happens to also be my court date. My relative has been assigned to work by his employer way out of town – like six hours away – the day I am to be in court next week. I can’t go asking people to take a day off work and drive me, out of their way to take me to court. A court date that I need to be at.
I hate asking for help. I don’t often ask for it. Most of my friends still don’t even know about the accident or the impending charges.
Hey – if you see a guy hitch hiking, with a garment bag probably containing his suit – pick him up. He might be heading to court, and is trying to be responsible.
And if you think it’s gonna be easy, to have a couple of drinks, get into an accident.. and the consequences are something you can deal with.. think again. Drinking and driving is tough. The consequences are harsh. Your life will be changed.
MADD Furious With Canadian Statistics
According to a CTV report, MADD is “furious” with Statistics Canada’s report on impaired driving last year.
“MADD is furious with the statistics. Spokesman Andy Murie says the finding of a drop is useless and meaningless, because Statistics Canada only reports Criminal Code violations, not provincial charges.”
~ Source
According to MADD and the article quoted, British Columbia had 7,000 criminal alcohol related driving charges and 45,000 Provincial alcohol related driving charges. The article does not say if Statistics Canada accounts for charges being dropped, changed or found not guilty.
Although there is often a view by other Canadians of Newfoundlanders drinking more, the Province of Newfoundland and Labrador had the lowest rate of alcohol related driving charges in Canada. Saskatchewan had the highest rate.
Impaired Bicycling
Can you be charged with impaired driving if you ride your bicycle and have been drinking? It’s a question that some folk have asked. For me, after my impaired driving charge, I have been riding my bike frequently.
In Canada, you cannot be charged criminally with impaired driving while riding a bike. In both Ontario and Federally, the laws apply to motorized vehicles. However, that does not mean you cannot be charged with an alcohol related offense if you have been drinking and are riding a bicycle.
If a police officer thinks you’ve had too much to drink and are riding a bike, the office could charge you under the Liquor Licence Act with being intoxicated in a public place. If you are riding and consuming an alcoholic drink at the same time, you could be charged with consuming alcohol not in a licensed establishment or residence.
If you are on a power assisted including electrical bike, the bike is now considered a motor vehicle and criminal charges including impaired driving could be laid against you. The same goes for mopeds and power assisted scooters.
Canada Removes Impaired Driving Defense
In Canada, those charged with an alcohol driving offense could often call witnesses and a toxicologist to cast doubt on the reading provided by a breath alcohol device. It was recognized by the courts that Breathalyzers and Intoxilyzers were not infallible and machines can malfunction. Devices like Intoxilyzers are also programmed for “ideal” conditions and make a number of assumptions about air pressure, infrared technology, mouth alcohol, and the environment. Some tests have even shown that radio waves from a cell phone can cause at least one model of the Intoxilyzer to give a false reading of blood alcohol content such that it will report the level to be beyond it’s capabilities!
If an accused could cast doubt on the machine’s reading, they may end up with having their charge thrown out of court. This defense is referred to as the “Carter Defense.”
For some years and at the pressure of some lobby groups such as M.A.D.D., the Federal government of Canada considered changes to the law which would virtually eliminate the Carter Defense. Although many civil libertarians and those interested in justice attended and spoke at hearings before the law was changed, warning about the erosion of justice if the new ammendment (Bill C-2) was passed, elected officials ignored the warnings.
Now as of July 2nd, 2008 you will no longer be able to use the Carter Defense. Those charged prior to July 2, 2008 may still be able to use it.
Mike Kruse, a Canadian lawyer who specializes in impaired driving charges reports how the changes will affect those charged with impaired:
“Your BAC (i.e the reading on the breathalyzer or intoxilyer) at the time of the breath test will be accepted by the judge as your actual blood alcohol concentration unless you can show all of the following three things:
- your BAC would not in fact have been over 80 mgs. at the time of the offence (i.e. I only drank ‘two beers’ and a toxicologist testifies I would have been below the legal limit of 80 mgs. of alcohol in 100 mls. of blood at the time of driving)
- secondly, the approved instrument was malfunctioning or was not properly operated by the qualified breath technician (i.e. instrument error or operator error); and
- thirdly, the malfunction or improper operation caused your BAC to be mistakenly measured as over 80 mgs. of alcohol in 100 mls. of blood
In other words not only do you have to present a traditional Carter defence, but you also have to show that the approved instrument malfunctioned or was operated improperly and that this malfunction or improper operation resulted in an incorrect reading. Before Bill C-2, in advancing a Carter defence, you did not have to point to either instrument or operator error.”
Although one can understand to a degree why some defenses would be closed, it is a travesty of true justice to know that a machine could malfunction and not be able to provide witnesses that can attest to what your BAC level most likely was based on facts. Now the defense must prove malfunction or operator error instead of the Crown proving everything worked correctly.
Faulty Intoxilyzer Calibration Affects Hundreds of Impaired Convictions
Since the autumn of 2008, over 300 people were convicted of Driving Under the Influence of alcohol where some of the evidence used turned out to be intoxilyzer machines that had not been calibrated correctly.
According to Fox, there was jail time involved for some of those that were convicted.
The convictions took place in Washington, DC.