Impaired Driving Legal Stuff
In Canada, according to this report in the Owen Sound Times, a typical defense to over 80 charge has been virtually eliminated:
“Lawyers say it has become harder to beat drinking and driving charges since Criminal Code changes last year all but eliminated the so-called “two-beer defence,” which attacked breath test results.
“I think that it has very significantly affected the scope of defence that can be put forward on impaired operation and over-80 charges,” said Clayton Conlan, president of Grey County Criminal Lawyers’ Association, in a recent interview.
Until July 2, 2008, people could testify the accused drank less than the breathalyzer instrument indicated, so critics called it the two-beer defence.
A hired toxicologist would testify the accused’s blood-alcohol concentration must have been lower than the test indicated, based on body weight and consumption.”
This is unfortunate, and one wonders whether Canadian jurors and legislators are more interested in justice or conviction rates.
As I have written before, I have gone over the details of the night I had my accident a hundred times a day. I couldn’t believe what happened, happened to me. And no, I am not in a state of denial. I do drink. I enjoy drinking. I make my own wine. I am ashamed of what happened that night, and the decision I made to go for a drive and go and surprise my girlfriend, who had just surprised me pleasantly.
Not only have I gone over the details of the accident many times, I have gone over exactly what I drank prior to the accident. I’ve used just about every online BAC calculator I can find, and none of them say I should have blown over .08. I know what alcohol was available, I know what I drank, and I know what alcohol was left over – and it just does not add up.
I know I should not have driven. I was tired – but could not sleep. I had some alcohol. Perhaps any amount of alcohol and fatigue do not mix. I can accept that. But I couldn’t sleep – so I felt awake at some level.
I can account for all the alcohol that was consumed over a 48 hour period. By the amount I had in my possession, and the amount that was left over and what was purchased.
The Intoxilyzer 8000C was introduced about 2005 and is a part of the 8000 series, used by many law enforcement agencies throughout the world. Many believe that this machine provides extreme accurate results. Law enforcement agents like the fact that it is very fast in providing results.
According to the manufacturer, CMI Inc, the Intoxilyzer 8000C contains a 30 MHz Intel compatible processor with 1 MB of memory for data storage. It weighs about 17 pounds and comes with a keyboard for operator input. It takes less than 20 minutes to warm up and provides a result in less than a minute. It analyzes breath samples using infrared absorption at both 3 and 9 microns at the same time, which is supposed to make it effective at being able to adjust the results for any mouth alcohol that is present. Mouth alcohol, or alcohol that was recently put in the mouth has been known to skew results of alcohol detection devices.
There have been issues with the Intoxilyzer 8000. In the US, there has been an application to the courts to have the source code of the device released for examination. The manufacturer does not want to release the source code, however it has been argued that it is necessary in order to see if it can be determined why the alcohol breath analyzer has produced some incorrect results at times.
Other issues with the Intoxilyzer:
1. It is said that when the machine is calibrated, if the testing solution is off by only 1 fifth of a degree, the calibration is not accurate. As well, if you have a fever of just 1C, your blood alcohol level will be inflated by at least 7%,
2. The “Lambert-Beer” law states that the amount of infrared light absorbed by your breath is proportional to the amount of alcohol in the sample. But the Intoxilyzer cannot account for all interferents that end up being in the sample and misread as alcohol.
3. If you take several deep breaths or hyperventilate before blowing into the Intoxilyzer, this can have the effect of cooling your lungs and resulting in a lower blood alcohol (BAC) reading.
Governor Arnold Schwarzenegger signed into law last fall, a bill which would require first time dui offenders in some parts of California to install ignition interlock systems into their vehicles.
Apparently, it’s a bit of an experiment to see if the installation of in-car breathalyzers will deter drinking and driving. The experiment will last five years.
Not everyone in California will be required to install the alcohol detection devices. Only those who have been convicted the first time of a dui offence in the counties of Alameda, Los Angeles, Sacramento and Tulare will be affected by the new law.
For some reason, it appears repeat offenders will not be targeted which some defense lawyers and other lobbyists find weird.
If this is an experiment or study, I wonder who will pay for the breathalyzers to be installed in the vehicles and then maintained?
Years ago, I worked in a specialized area of law enforcement that sometimes required us to make arrests and charge people. During that time, my own political and philosophical views changed and I became frustrated and annoyed at the growing emphasis on “enforcement” and charging people, away from an emphasis on solving problems through crisis intervention techniques and de-escalating situations with the goal of resolving problems without charges or arrests.
Eventually, we had “benchmarks” for certain things that we were expected to attain or “come close to” when we were evaluated. They didn’t call it a “quota,” rather a “benchmark.” Somehow, a “benchmark” is different than a quota. Actually, there is a minor difference I suppose in that a benchmark meant that you didn’t actually have to meet a minimum quota – one could argue that due to other circumstances, meeting the actual “benchmark” number was not attainable – and depending on who was doing the evaluation, the fact the “benchmark” was not reached was then excused.
Personally, I objected to this sort of thing strenuously. I also realize that my own case likely has nothing to do with any benchmarks or quotas imposed, but as far as news and DUI enforcement, it is notable that apparently the State of Alabama police have imposed quotas on their officers in regard to DUI charges. Lawrence Taylor at his DUI Blog provides this:
“The number of tickets for DUI written by state police from the Birmingham post doubled in March after a memo from the acting post commander threatened to punish any trooper who did not make at least three DUI arrests by the end of that month.
Trooper officials defended the memo from now-retired Sgt. Steve Bryant and obtained by The Birmingham News. The memo said each trooper should make at least three DUI arrests by the end of March, and that those who failed to do so could lose their day-shift assignments or opportunities for overtime pay…”
According to the article,
“The Birmingham post made 50 arrests in both January and February, but in March the number jumped to 97, according to data provided by the state troopers. In April there were 91 DUI arrests and 117 in May.”
In Canada, impaired driving and driving over the limit of blood alcohol concentration are criminal offenses which are defined at the Federal level. Therefore, the limit of blood alcohol concentration (BAC) is set at a limit of 0.08 (80 milligrams) across the entire country.
In the United States, these laws are determined by each State on it’s own. Up until recently, some States such as Colorado had a legal limit of 0.10 BAC, but in 2000, President Clinton instituted a law which forced all States to adopt the limit of 0.08. If States like Colorado did not reduce the limit to 0.08 by 2003, they would forfeit 4% of their federal highway grants.
Individual States have different rules about automatic suspensions and whether a vehicle is forfeited after a drunk driving charge. Some States like South Dakota do not have an automatic administrative license suspension and don’t require the use of a ignition interlock system after a conviction. New Hampshire, West Virginia and Wisconsin have an automatic 6 month administrative driving suspension while in New York, this suspension lasts until the legal proceedings are complete.
Alcohol related charges are one of the very few where you are penalized before being found guilty, in many jurisdictions including Canada.
It is very tempting in some ways to just plead guilty to a charge of impaired driving. Get it over with, and get started on that one year of license suspension. If you don’t plead guilty, there will be further court dates in the future, and if convicted even after fighting the charge, the one year driver’s license suspension will begin on the date of conviction – putting off even further into the future the day you will be able to get your driver’s license reinstated.
The problem with the conviction though is that you will have a criminal record. It will be more difficult to travel to some countries and cross borders with a criminal record. As well, your insurance costs after you get your license reinstated will skyrocket – perhaps more than $10,000.00 per year! If convicted, any damage to your vehicle will likely not be covered by your insurance company. Insurance companies consider driving while impaired as a breach of contract. In some jurisdictions, there are additional fees such as installing and maintaining an ignition interlock system – your very own breathalyzer in your vehicle. If convicted, you will need to blow into the ignition interlock system in order to start your vehicle, and the limit of alcohol is set very low – at 0.02.
If you’ve been charged with impaired driving, resist the temptation to simply plead guilty. Talk to a lawyer first, and get some advice. A lawyer will be able to request full disclosure of the charges against you and look over the case they have to try to prove it. Sometimes, mistakes get made and a conviction may not be cut and dry. There is also the possibility the charge may be reduced to something like Careless Driving which becomes non-criminal.
The best thing of course, is to not drink and drive at all!
I thought it would be handy for future reference to post the exact wording from the Criminal Code of Canada (CCC) that defines Impaired Driving:
It is section 253 of the Criminal Code.
(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(a) includes impairment by a combination of alcohol and a drug.
I keep getting phone calls from the insurance company. Their representative wants to visit me and take a statement from me regarding the accident and the criminal charges that were laid against me. I’d like to cooperate with them, and don’t want to be seen as being uncooperative, but haven’t been sure what to do.
I managed to get in touch with my lawyer and asked for advice. The lawyer advised me to reply, “There will be no statement until the charges are resolved.” I will have to get in touch and let them know about this legal position.
I received a letter from the insurance company – they made a minor error in referring to “the Criminal Code of Ontario.” Ontario has no criminal code. It’s Provincial, and in Canada, only federal law is “criminal.”
Regardless, they write, “… will continue to investigate this claim even though a coverage question exists…. Company reserves the right to deny coverage to you or to anyone claiming coverage under the policy.”
If you drink and drive in Ontario, get caught and are convicted of impaired driving, you will be required at your own expense (about $600.00) to register for the Province’s remedial program, “Back On Track.”
Administered by local addiction service agencies, this program can take 9 months to complete. After your license has been suspended (first offense is an automatic one year suspension), you must complete the program before you can have your license reinstated. It can also take up to 3 months to begin the program from the date you register. Because of this fact, you should register immediately upon being convicted of impaired driving if you hope to have your license back after the one year suspension is over.
When you are registered, you will be given a date that you must arrive for, on time when you will be evaluated. Depending on the outcome of the evaluation, you will be advised whether or not you need to complete the “treatment” program along with the education program.
The education program consists of an 8 hour session where you will learn about such things as the myths and facts about alcohol use, how drugs and alcohol affect safety and driving performance, and the consequences of drunk driving from both a personal and legal standpoint. You will also be taught how to separate driving from your use of alcohol and drugs.
If you are required to attend the “Treatment Program,” you will need to set aside 16 hours where you will discuss why people drink, ways to cut down on your alcohol use and how to manage your moods including anger and stress. You will be provided with skills to help you live a healthier lifestyle as well as improve communication.
Six months after you have completed the treatment and education programs, you will be required to attend a follow up interview.
You must attend all of the sessions and interviews in order to successfully complete the program. If you miss a day or are late, you will fail the program and must start all over again. The fee is non-refundable.
Only after successful completion of the program will you be able to apply to have your Ontario driver’s license reinstated.
Your best bet is to simply not drink and drive at all!
If you need to apply to the program, application forms are available here.
Yesterday, I had to go to the OPP station to have my fingerprints and photo taken. Had to get up early and then wait for a relative to pick me up. It was very embarrasing to me to have to go to a police station to have this done and feel like a criminal. When you drink and drive, and get caught, you are now a prisoner to everyone else’s schedule. And you become a burden to relatives and friends.
My relative and I had to wait until the camera and fingerprinting room was set up, we were told. The officer that did the photography and fingerprinting was quite nice and civil. She asked me a few questions related to the accident in a general sort of way, but I was advised by my lawyer not to talk to anyone about it. So I answered in with vague general answers. I’m pretty sure that the police office was just making conversation with me, but who knows?
In order to be released after the impaired driving charge, I had to sign a promise to appear at the OPP station to get finger printed and my mug shot taken. It said 10AM. We were there in good time and arrived at 9:30AM. My relative and I sat and talked for awhile before going into the station about ten minutes before the appointed time.
After, we waited some more. Another relative came down in the afternoon to help me look at my vehicle and get my stuff out of it. We were told by the owner of the vehicle pound that an insurance guy had already visited and had apparently indicated that to them, the vehicle was a write-off. And I still owe a lot of money on it. Because I was charged with impaired driving, if I am convicted, the insurance company won’t pay a cent for repairs, replacement, or anything else. They are required however to pay for medical expenses.
We made arrangements to get the vehicle out of the pound and to another place where an acquaintance will store the vehicle for me. He’s an auto body mechanic and thought there was a possibility the vehicle could be repaired using used parts instead of new parts. I have no idea what to do. Owing money on it, and trying to think ahead two years, and all of the different possibilities that could occur, it’s very difficult to make any logical or rational decisions.
After the accident, I have been suffering pain in my right chest. I have pretty much sucked it up but when my relative saw me wincing a few times, insisted I go to the hospital. After a long wait, a doctor advised me that I had probably suffered a cracked rib – it didn’t show up on the x-ray, but due to the nature of the pain and how it was manifested, it’s very likely that is what is causing the pain. Very small cracks don’t always show up on xrays.
It turned into a very long day and I did not get back to my office where I am sleeping right now until about 2:30AM. All of that time was dependent on other at least one other person to whom I am very grateful, but of course, it meant taking away their time from things they could have been doing with their family, to help me.
If you drink and drive, get caught, and are charged with impaired driving, it will not only affect you, but many others as well.