• 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. v. M.G. – Nanaimo Supreme Court

Charges: Break and Enter; Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction.
Result: Mr. Gauthier was able to persuade Crown counsel that the Crown lacked the necessary evidence to gain a conviction. On the eve of the trial, Crown entered a stay of proceedings, bringing the matter to an end. No criminal record.

R. v. H.A.S. – Vancouver Provincial Court

Charges: Sexual Assault (x4).
Issue: Given our client's extensive progress with rehabilitation and the collateral consequences of a conviction, whether it was appropriate for our client to be granted a conditional discharge.
Result: After hearing Mr. Mines' extensive submissions on our client's behalf, the trial judge granted our client a conditional discharge rather than imposing a conviction which would have resulted in a deportation order.

R. vs. D.A. – Kelowna Provincial Court

Charges: Assault with a Weapon; Obstruct Police Officer.
Issue: Despite the very serious nature of the offence (threatening to cause serious harm at knifepoint) whether a jail sentence was the appropriate sentence.
Result: Mr. Gauthier was able to direct our client through an intensive course of rehabilitation, and was ultimately able to persuade Crown counsel and the Court to grant our client a conditional sentece to be served in the community in a residential tratment facility. No jail.

R. vs. R.P. – Vancouver Provincial Court

Charge: Assault.
Issue: Given the extensive rehabilitation effort of our client, whether it was appropriate for the court to grant our client a conditional discharge.
Result: Mr. Mines was able to persuade the Court that provocation was a significant factor and that, despite kicking the complainant, the appropriate sentence was a discharge on condition of "no contact" for 12 months. No criminal conviction.

R. v. K.P. – Vancouver Provincial Court

Charge: Uttering Threats (reduced to Peace Bond).
Issue: Given the Charter issues that arose during our client's arrest, whether it was appropriate to continue with the criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown counsel that police had likely violated our client's rights during his arrest and to proceed with a Peace Bond rather than the criminal charge. No criminal record.

R. vs. O.A. – Vancouver Provincial Court

Charges: Criminal Harassment (reduced to Peace Bond).
Issue: Given our client's significant self-rehabilitation, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown counsel to end the criminal prosecution and to resolve the matter with a s. 810 Recognizance ("Peace Bond"). No criminal record.

R. vs. P.A.N. – West Vancouver Police Investigation

Charge: Fraud (from employer).
Issue: Given our client's cooperation with authorities and willingness to repay the alleged misappropriated funds, whether it was in the public interest to proceed with criminal charges.
Result: Mr. Gauthier was able to persuade the police investigator to refer the file to Restorative Justice rather than arresting our client and recommending a criminal prosecution. No charge was approved. No criminal record.

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

Charges: Assault (reduced to Peace Bond).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in  the public interest continue with a criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to proceed with a Peace Bond rather than the criminal assault charge. No criminal record.

R. vs. K.Q. – Richmond Provincial Court

Charge: Mischief to Property.
Issue: After Mr. Gauthier was able to facilitate making restitution on our client's belf, whether it was in the public interest top proceed with the criminal prosecution.
Results: Crown counsel accepted Mr. Gauthier's representations and concluded the matter by entering a stay of proceedings. no criminal record.

R. vs. A.V. – Duncan Provincial Court

Charge: Assault.
Issue: Given the information Mr. Johnston was able to provide to Crown counsel about our client's circumstances and the significant rehabilitation steps we were able to guide him through, whether it remained in the public interest to continue with the prosecution.
Result: Crown counsel accepted Mr. Johnston's representations and concluded the matter by entering a stay of proceedings. No criminal record.

R. vs. D.J. – Chilliwack Provincial Court

Charge: Assault (reduced to Peace Bond).
Issue: Given the rehabilitative steps we were able to guide our client through, whether a criminal prosecution was appropriate.
Result: Mr. Mines was able to persuade Crown counsel to proceed pursuant to a s. 810 Peace Bond, and to enter a stay of proceedings on the criminal charge. After hearing Mr. Mines' submissions, the Court placed our client on the Peace Bond. No criminal record.

R. v. Q.C. – Insurance Fraud Investigation

Charge: Insurance fraud over $5000 investigation.
Issue: Given our client's rehabilitation and repayment of disputed funds, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade the Insurance company to settle the matter on a civil basis. No criminal charhges were forwarded. No criminal record.

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.