Impaired Driving Cases



Gregory Lafontaine for The Lawyers Weekly

In Canada, there are few "open and shut" impaired driving cases. The evidence used to prove impairment is inevitably highly subjective. The extent to which a person's speech seemed to be slurred or that the person swayed from side to side while standing at the roadside are all very much in the eye of the beholder. Furthermore, the "beholder" will almost always be the very police officer who made the decision to lay the charge in the first place. Thus, at trial, the police officer will relate her evidence of observations of highly subjective matters from the perspective of assumed guilt as opposed to presumed innocence.

The alternative offence, "driving over 80", amounts to an attempt to provide a more objective basis to consider guilt or innocence. In Canada, it is proved by establishing that you were driving at a time when your "blood-alcohol content" exceeded 80 milligrams of alcohol per 100 millilitres of blood. The Blood Alcohol Content (or "BAC") represents the point beyond which most people in Canada will likely be impaired in their ability to drive. Proof of the offence is heavily reliant upon the accuracy of breath readings taken at a Canadian police station. While these readings are generally presumed to be accurate, if the criminal lawyer presents the Canadian trial Judge with believable evidence of actual consumption that raises a reasonable doubt as to the accuracy of the breath readings, the defendant is entitled to an acquittal. A challenge to the accuracy of the breath readings will require the highest quality of defence evidence and it will be very important to have the guidance of an experienced drinking and driving criminal lawyer very early in the process to assist in locating and preserving critical pieces of evidence.

A criminal lawyer's defence of attacking the accuracy of the breath readings is merely the tip of the iceberg. It would be monumental task to set out all of the potentially available defences in drinking and driving cases. The provisions of the Criminal Code in Canada that relate to breath readings are highly technical and any non-compliance by the police can spell the end of a prosecution. Further, like all other citizens under criminal investigation in Canada, a suspected drinking driver has the protection of the Canadian Charter of Rights and Freedoms at every stage of the process from the initial roadside detention to the conclusion of the criminal trial. Rights infringements in Canada often result in the exclusion of prosecution evidence or, in the most extreme cases, a decision by the trial Judge to halt the prosecution entirely.

It would be foolish not to take a drinking and driving charge seriously and it would be helpful to consult a criminal lawyer. It is a serious criminal offence in Canada, and a finding of guilt will undoubtedly have far reaching ramifications. It is possible to effectively defend against a drinking and driving conviction. However, this will only be possible with the assistance of a criminal defence lawyer who is experienced in this unique and highly complex area of the Canadian criminal law.

Gregory Lafontaine practises at Lafontaine & Associates in Toronto

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