Driving with a blood alcohol content of 0.08 or higher is considered a criminal offence in Ontario, and the penalties are severe. The penalties for a BAC over the legal limit include:
•90-day license suspension
•7-day vehicle impoundment
•$275 fee for license reinstatement
•Use an ignition interlock device for at least 6 months (10 years for third and subsequent occurrences within 10 years)
•Attend a mandatory treatment and education program (if second and subsequent occurrences within 10 years)
While no one encourages driving while under the influence, there are cases where drivers are improperly charged. When this happens, there are many defences a Toronto criminal lawyer can use to beat the charge.
1. Improper ASD Training
It may be possible that the officer who administered the screening device was not properly trained on how to use the device. If the officer cannot explain how the procedure should be done to a judge, it may allow for a Charter challenge with the hope excluding the samples.
2. “Last Drink”
It’s not uncommon for police to arrest drivers shortly after they’ve had their last drinks, particularly in areas where law enforcement actively monitors drinking establishments and drivers who emerge from them.
The defence may argue that the “last drink” consumed shortly before the stop is not yet in the driver’s blood, but would be once they reach the station. This type of claim makes breath tests open for challenge, as it is only illegal to drive with a BAC of 0.08 – not in your stomach.
3. Contradicting Indicia Impairment
If different police officers have contradictory descriptions of your indicia, the judge may doubt whether you were truly impaired.
Officers are expected to have accurate notes on the indicia, not contradictory ones.
4. Late ASD Demand
The approved screening device must be given as soon as possible. The case may be challenged if the officer does not have the device on hand, calls for it to be brought to the scene, and won’t allow you to leave the scene.
5. No Right to Counsel
You have a right to speak to a lawyer as soon as possible, and this may mean at the scene of the incident. If you are not connected to a lawyer, it may be a defence to a DUI charge.
6. No RPG
The judge may find that you were arrested without sufficient RPG (reasonable and probable grounds). In this case, your breath readings may be excluded from evidence. There must be sufficient indicia of impairment in order to be arrested for impaired driving.
7. Samples Not Taken Quickly Enough
Samples must be taken as soon as reasonably possible in Over 80 cases in order for them to be used in the case. A delay in taking the samples, which is common, may destroy the case against you.
8. Inaccurate Tox Report
Tox reports may not be accurate. The Crown relies on its expert toxicologist, but communication between the two parties may not be effective. An experienced lawyer should be able to use this to destroy the case.
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