DRUNK DRIVING / DRUNK DRIVING ACCIDENT / OVER .08 / REFUSAL
Often referred to as “DUI”, “drunk driving” or “impaired driving”, the criminal charge of drunk driving involves either operating or being in the care or control of a motor vehicle or vessel, while your ability to operate that vehicle or vessel is impaired by alcohol, or a drug.
Often the charge is laid after police take the driver to a police detachment where a qualified technician takes samples of breath into a breathalyzer instrument known as the BAC Datamaster C to measure the concentration of alcohol in the blood (blood alcohol concentration).
If the breath sample registers over the legal allowable limit of .08, the police will usually add a charge of over .08 as it is a criminal offence to either operate, or have in your care or control, a vehicle or vessel, with that blood alcohol content, regardless of whether you are actually impaired.
A charge of refusal results if you refuse to participate in certain elements of a police investigation into impaired driving. The most common refusal charges involve the refusal to either provide a sample of your breath at roadside (into an Approved Screening Device) or refuse to provide a sample of your breath at the police detachment into the breathalyzer machine.
Recently, the government also added new criminal offences if you refuse to perform sobriety tests (or “SFSTs”) at the roadside, and have introduced powerful new investigation powers to certain certified police officers to engage in “drug recognition evaluations”, which are designed to detect people driving under the influence of drugs other than alcohol.
Charges of impaired driving / drunk driving / over .08 / DUI and refusal are very technical. Police officers and breath technicians must obey strict rules and procedures, and it is not uncommon for them to make mistakes. Such mistakes can mean that the roadside screening device and/or the breath machine can be wrong.
Police are also required to carefully follow certain rules and procedures to ensure that a driver who is arrested on any of these charges have prompt access to their lawyer of choice. This does not always happen.
There are a variety of ways to challenge their accuracy, as well as whether the police properly followed the rules and procedures. Because of this, there are many defences available to challenge the evidence – and courts regularly exclude it, which often leads to an acquittal.
Where someone drives in a manner that is considered to be a “marked departure” from the kind of driving that society expects from a reasonable person, the police may lay a charge of Dangerous Driving. The consequences of a conviction are serious: they include a criminal record, may include jail and usually include a lengthy driving prohibition under the Criminal Code. Often, they also rely on people’s subjective observations and in a trial, these can and should be tested by an experienced lawyer acting for the defence – that process can often be the difference between a conviction on the one hand, or on the other, a judge’s finding that though the driving was not perfect, it also was not criminal.
DRIVING WHILE PROHIBITED
This charge involves driving a vehicle while being prohibited from doing so, either by the Superintendent of Motor Vehicles, or the Court. Before someone can be convicted, the Crown must prove that the person knew of the prohibition; that the prohibition was in effect the entire day of the offence date; and that the person prohibited, was driving. A conviction usually carries a further and longer driving prohibition as well as a criminal record. Proving the charge can be quite technical and such there are a variety of defences that a skilled and experienced lawyer can help present.
DRIVING WITHOUT DUE CARE & ATTENTION
This offence is charged under the Motor Vehicle Act. The Crown need only prove certain aspects of poor driving on the part of the accused; and the accused must then show that the poor driving was done without negligence or fault on his part. These cases can be technical in nature, may provide many defences depending on the driver’s knowledge and actions at the relevant time and often have important consequences to the driver’s insurance coverage. The assistance of an experienced and skilful lawyer can make a big difference.
For a sampling of recent successes that Vancouver Criminal Defence Lawyer Emmet J. Duncan has enjoyed for his Clients, browse his Recent Cases in Defending Driving Offences.
** Please be advised that these definitions and information are not comprehensive legal definitions. They are designed to provide a brief and basic description of some of the most common criminal charges. As with all criminal charges, available defences will vary depending on the individual circumstances of each case. As such, the content of this website is not legal advice. Do not use or otherwise rely on any of the following content without first seeking proper legal advice.**