DRINKING AND DRIVING OFFENCE

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1 What to do if you are charged with a DRINKING AND DRIVING OFFENCE This booklet is not about provincial Motor Vehicle Act penalties for drinking and driving. This guide explains what normally happens when you are charged with a drinking and driving offence under the Criminal Code of Canada. The guide does not try to cover every situation. For detailed information, speak to a lawyer about your case. Who can use this guide? This guide is for people who want to plead not guilty to a drinking and driving offence under the Criminal Code of Canada. You can use this guide if: you do not qualify for legal aid, you cannot afford a lawyer, and you plan to represent yourself in court. Drinking and driving cases can be very complicated. You should represent yourself only if you do not qualify for legal aid and you cannot afford a lawyer. If you choose to represent yourself, be sure to talk to a lawyer before your trial for advice. Some legal help is better than none. See Where can I get legal help? at the end of this booklet. reasons for using this guide try to get a lawyer What information will I find here? This guide describes: the crimes you can be charged with under the federal Criminal Code if you drink and/or take drugs and drive, what the prosecutor must prove in court, how you can defend yourself, and the sentence you could get if the judge finds you guilty (in some cases, a jail sentence is mandatory). At the end of this guide, you will find a checklist. Use this at your trial to help you figure out if the prosecutor has proven all the necessary parts of the offence. what this guide explains What to do if you are charged with a DRINKING AND DRIVING OFFENCE 1

2 additional penalties Provincial Motor Vehicle Act rules about drinking and driving involve penalties such as fines, being banned from driving, or having your vehicle impounded, and other requirements (attending a remedial program or using an ignition interlock device). These rules may apply whether or not you are convicted of a criminal offence. For more information, see the Ministry of Justice website (select Superintendent of Motor Vehicles, then Prohibitions and Suspensions ). other helpful guides For more information on offences, trials, and sentencing, see these other guides: If You Are Charged with a Crime Representing Yourself in a Criminal Trial Speaking to the Judge Before You Are Sentenced Ask for them at the same place where you got this guide. Read them before you go to court. three possible charges What is drinking and driving? If you drink and/or take drugs and drive (or have care and control of) a vehicle, you risk three serious criminal charges: over.08 or over eighty (this means that you had care and control or were driving with a blood-alcohol level over 80 milligrams) impaired driving or care and control (caused by alcohol and/or other drugs) failing or refusing without lawful excuse to comply with a demand (this means that the police believed your driving or care and control was impaired by alcohol, drugs, or a combination of drugs and alcohol, and you failed or refused to provide breath, blood, urine, or saliva samples, perform a physical coordination test, or submit to a drug evaluation on demand) 2 What to do if you are charged with a DRINKING AND DRIVING OFFENCE

3 These charges apply whether you were driving or had care or control of a car, a boat, a plane, or some other motor vehicle or vessel. You can be found guilty even if you did not put the vehicle or vessel in motion. charges apply to any type of motor vehicle or vessel Which type of offence am I charged with? The prosecutor can treat drinking and driving as a summary offence, which is a less serious crime. Otherwise, he or she may treat it as an indictable offence, which is a more serious crime that normally involves a stricter sentence. If you drink and drive and injure or kill someone as a result, the offence is automatically indictable, and the penalties will be severe. The first time you are in court, ask which type of offence the prosecutor is charging you with, and whether he or she will be seeking jail if you are convicted. Usually, the prosecutor will say that he or she is proceeding summarily (which means that you are being charged with a summary offence). But you might hear that the prosecutor is proceeding by indictment (which means that you are being charged with an indictable offence), and/or that the prosecutor is seeking a jail sentence. If that happens, you should immediately ask the judge or justice of the peace to adjourn (delay) your case so that you can get legal help. If you are charged with an indictable offence, you usually have a better chance of getting legal aid so be sure you know what type of offence you are being charged with. Legal aid may change the decision to not cover your case. For more information on summary and indictable offences, see the guide Representing Yourself in a Criminal Trial. You can ask the court to appoint a government-funded lawyer to your case (make a Rowbotham application) if: you cannot afford a lawyer and were denied legal aid, the prosecutor says that he or she will seek a jail sentence if you are convicted, or will seek any other type of sentence that will have serious consequences for you, and summary or indictable offence if indictable, ask for a delay and speak to a lawyer when to ask for a governmentfunded lawyer What to do if you are charged with a DRINKING AND DRIVING OFFENCE 3

4 you feel that your case is too complex for you to handle. For more information about having a lawyer appointed to your case, see the guide If You Can t Get a Lawyer for Your Criminal Trial. prosecutor must prove you are guilty you can question witnesses What must the prosecutor prove? The prosecutor must prove beyond a reasonable doubt that you are guilty of all the parts of the drinking and driving offence that you are charged with. To do this, the prosecutor will present evidence (information about the crime) to the court, using witnesses or documents. You can cross-examine (question) the prosecutor s witnesses. But you will normally do so only if you disagree with their information. For details about how to cross-examine, see the guide Representing Yourself in a Criminal Trial. For a judge to find you guilty of a drinking and driving offence, the prosecutor must prove the following things: you are the one who committed the crime place and date of crime 1. Identity The prosecutor must prove that you are the person who committed the crime. To do this, the prosecutor will call witnesses, including the investigating police officer, to give evidence. The witnesses will probably describe the person they saw committing the crime. Then the prosecutor will ask the witnesses to say if that person is in the courtroom. The evidence, either from the witnesses or from other sources (such as a video recording), must show that you are the person who committed the crime. 2. Jurisdiction The prosecutor must prove: that the crime happened in BC, the date of the crime, and the specific location where it happened. These details are included on the information (the official court form listing the date, place, and type of offence) that the prosecutor will give you before the trial. 4 What to do if you are charged with a DRINKING AND DRIVING OFFENCE

5 Usually the prosecutor will call a witness to give evidence about the date and place of the crime. This witness will likely be the investigating police officer. 3. You were operating a motor vehicle or had care or control of it The prosecutor must prove that you: were operating (driving) a vehicle, or had care or control of it. The prosecutor will often try to prove that you were operating the vehicle. So if you were driving when the police stopped you, the prosecutor will call the police officer as a witness to say that he or she saw you driving. Even if you were not driving when the police saw you, the judge can still find you guilty if the prosecutor proves you had care or control of the vehicle. The prosecutor can do this in either of the following two ways: you operated or controlled the vehicle control even if not driving If the police found you in the driver seat, the law assumes you had care or control, unless you can prove that you were not going to move the vehicle. If you were not in the driver seat, the prosecutor could prove that you had care or control by showing that you did something with the vehicle that risked moving it, even if you did not intend to move it. For example, if the police found you alone in the front passenger seat with the engine off, the prosecutor could still try to prove that you had care or control. To prove that you were drinking and driving, the prosecutor must prove all three of the above points (1, 2, and 3), plus whichever one (or more) of the following parts (A, B, or C) deals with the criminal offence you are being charged with. That means the prosecutor would also have to prove part A for a charge of over.08, part B for impaired driving or care and control, and part C for failing or refusing without lawful excuse to comply with a demand. what the prosecutor must prove What to do if you are charged with a DRINKING AND DRIVING OFFENCE 5

6 blood-alcohol level over.08 A. Your blood-alcohol level was over.08 To prove a charge of over.08, the prosecutor must prove that your blood-alcohol level was above the legal limit of.08 when you drove the vehicle or had care or control of it. To do this, the prosecutor may call witnesses, including the investigating police officer and the qualified technician who took and analyzed your breath or blood samples. These samples must show your blood-alcohol level was over.08 and these test results must be linked to your blood-alcohol level at the time of the offence. breath and blood samples must be taken properly certificate from technician can be used This is a very complicated area of the law, because the prosecutor must show that both the investigating police officer and the technician who took and analyzed your breath or blood samples followed the proper procedures. The prosecutor can prove this by calling these people as witnesses. The prosecutor can also use a certificate of analysis from the technician that says all the proper steps were followed and your blood-alcohol level was over.08. The particulars (details of the charges against you) that you get from the prosecutor before the trial should include a copy of the checklist from the technician, showing the steps that were followed. If the prosecutor plans to use a certificate as evidence, he or she must give you a copy before the trial, and must give you reasonable notice (usually seven days) that this certificate will be used in court. If you think that it will help your case, you can make the technician who signed the certificate come to court and answer your questions. In order to do this, you must make arrangements before your trial actually begins. For more information about calling expert witnesses to court, speak to a lawyer. proper steps reasonable "grounds" to believe you were drinking and driving Here are the steps the police and the technician must have followed before the prosecutor can prove that your test results are valid: The police must have reasonable grounds (a good reason) to demand breath or blood samples Before asking for breath or blood samples, the police must have a good reason to believe that you have been drinking and driving within the past three 6 What to do if you are charged with a DRINKING AND DRIVING OFFENCE

7 hours. This belief could be based on your driving or how you looked and acted when stopped (for example, you may have had slurred speech or bloodshot eyes, or smelled of alcohol). The police may base this belief on what they see or what other witnesses say. If the police find you driving or in care or control of a vehicle and have good reason to suspect you have alcohol in your body, they can give you a quick test. The police may ask you to blow into a small roadside screening device. If you fail this test, the police may ask you to go to the police station to give a breath sample. The police may also ask you to take physical coordination tests, to provide blood, urine, or saliva samples, or to submit to a drug evaluation. The police must demand samples as soon as it is practical If the police have a good reason to believe you have been drinking and driving within the past three hours, they must demand breath or blood samples as soon as it is practical. If they wait too long, the prosecutor may not be allowed to use the samples as evidence in court. Normally, the police will demand a breath sample for a breathalyzer machine. But if a breath sample is not possible because of your physical condition, they can demand a blood sample. If you were in an accident and someone was injured or killed, and you could not consent to giving a sample because of your mental or physical condition, the police can get a warrant to take a blood sample without your consent. Only certain people can take and analyze breath and blood samples Only someone qualified to use a breathalyzer machine can take your breath sample. The breathalyzer machine must be an approved model in good working order. The prosecutor must show that a qualified technician operated it properly when taking your samples and analyzing them. quick test, then breath sample or other tests police must demand a quick test right away breath sample or blood sample as soon as it is practical breathalyzer person must be qualified What to do if you are charged with a DRINKING AND DRIVING OFFENCE 7

8 medical person must do blood sample over.08 when you drove Only a qualified medical practitioner or a person under the direction of a qualified medical practitioner can take blood samples. The qualified medical practitioner must be sure that taking the sample will not threaten your life or health. If you give a blood sample, you have the right to have an independent expert analyze it before the trial. Arranging and paying for this is your responsiblity. The prosecutor must prove your blood-alcohol level at the time of the alleged offence Even if the breath or blood tests show your bloodalcohol level was over.08 when tested, the prosecutor must still prove that you were over the legal limit when you drove, or had care or control of, the vehicle. He or she can do this in one of two ways: 1. If the prosecutor proves that the police and technician followed the proper steps, the law assumes that the over.08 result when you were tested is the same level you had when you drove. To use this assumption, the prosecutor must prove that: law assumes over.08 when you drove if these things are true reasonable grounds existed for the breath or blood samples to be taken, each sample was taken as soon as it was practical after the alleged offence, the first sample was taken within two hours of the alleged offence, for breathalyzer testing: the second sample was taken more than 15 minutes after the first one, each sample went directly into an approved instrument (a breathalyzer) operated by a qualified technician, and a qualified technician, operating the approved instrument, analyzed each sample. OR prosecutor can use expert witness 2. If the prosecutor cannot prove that the police and technician followed the proper steps, the second way to prove you were over the legal limit is to call 8 What to do if you are charged with a DRINKING AND DRIVING OFFENCE

9 an expert witness. This witness would say that your blood-alcohol level at the test time was so high that the level would definitely also have been over.08 when you drove, or had care or control of, the vehicle. B. Your driving or care and control was impaired Impaired driving is a separate criminal offence from driving with a blood-alcohol level over.08. Impaired driving means driving or having care or control of a vehicle when your ability to drive is impaired by alcohol, drugs, or a combination of alcohol and drugs. impaired driving Impaired driving caused by alcohol To prove a charge of impaired driving caused by alcohol, the prosecutor can do one of two things: 1. The prosecutor can use the results of breath or blood tests described in part A. Then the prosecutor can try to prove that your blood-alcohol level would have impaired your ability to drive. The evidence for this will usually come from an expert. expert on blood-alcohol level OR 2. The prosecutor can also try to prove your driving was impaired by alcohol without any breath or blood testing. To do this, the prosecutor might call the police officer or other witnesses to testify about: witnesses to say how you behaved how you consumed alcohol, your erratic driving, an accident, how you appeared and behaved when stopped, results of physical coordination tests (for example, walking in a straight line), opinions of police or other witnesses, or incriminating statements you made (statements that seem to prove your guilt). What to do if you are charged with a DRINKING AND DRIVING OFFENCE 9

10 Impaired driving caused by drugs If the police suspect that your driving within the last three hours has been impaired by drugs or a combination of drugs and alcohol, they can: demand that you do physical coordination tests, and demand that you have an evaluation by a qualified drug evaluation officer. If, after the evaluation, the drug evaluation officer has reasonable grounds to believe your ability to drive was impaired by drugs or drugs and alcohol, he or she can demand that you provide a blood, urine, or saliva sample. To prove a charge of impaired driving caused by drugs, the prosecutor can do one of two things: expert on drugs and alcohol 1. The prosecutor can use the results of the blood, urine, or saliva sample if that sample proved that there were drugs or a combination of drugs and alcohol in your body. Then the prosecutor can try to prove that the drugs or combination of drugs and alcohol would have impaired your ability to drive. The evidence for this will usually come from an expert. OR witnesses or drug tests 2. The prosecutor might call the police officer or other witnesses to testify about: how you consumed alcohol and/or other drugs, your erratic driving, an accident, how you appeared and behaved when stopped, results of the physical coordination tests (for example, walking in a straight line), opinions of police or other witnesses, incriminating statements you made (statements that seem to prove your guilt), or the results of drug evaluation tests, or the analysis of blood, urine, or saliva samples. 10 What to do if you are charged with a DRINKING AND DRIVING OFFENCE

11 C. You failed or refused to comply with a demand for a breath, blood, urine, or saliva sample, physical coordination test, or drug evaluation If you refused to blow in the roadside screening device or to give a sample of your breath later at the police station, or you were unable to provide enough breath for a sample, you can be charged with failing or refusing without lawful excuse to comply with a demand. The police may also ask you to take physical coordination tests, to provide blood, urine, or saliva samples, or have a drug evaluation. If you failed or refused to obey any of these demands, you can also be charged with this offence. To prove a charge of failing or refusing to comply with a demand for a breath, blood, urine, or saliva sample, physical coordination test, or drug evaluation, the prosecutor must prove that: failed or refused a valid demand the police made a valid demand for the breath, blood, urine, or saliva sample, physical coordination test, or drug evaluation, and you refused or failed to comply with the demand. Refusing to comply with a valid demand is a separate criminal offence that the prosecutor may try to prove even if he or she cannot prove that you were impaired. If you are charged with impaired driving and you refuse to comply with a demand without a reasonable excuse (such as a medical condition), the judge can use your refusal against you when deciding if you are guilty of impaired driving. can be used against you How do I defend myself? Drinking and driving is a very complex area of criminal law. It is very important to get as much help as you can from a lawyer or legal adviser, even if you plan to represent yourself. A legal adviser can look at the details of your case to see what your options are. Before the trial, make sure that the police, technicians, and prosecutor in your case followed the proper steps. If they did not, the court may not let the prosecutor use the test results as evidence. Look carefully at the particulars (also called disclosure) that the prosecutor gave you before the trial. Look for the following points: complex area of law that needs legal expert What to do if you are charged with a DRINKING AND DRIVING OFFENCE 11

12 before trial, see if any of these points apply motion for a directed verdict The police officer did not have a proper reason to demand a physical coordination test, drug evaluation, or a breath, blood, urine, or saliva sample. Breath, blood, urine, or saliva samples were not taken as soon as it was practical after the demand. The technician made mistakes in taking the samples, operating the equipment, or analyzing the results. The prosecutor has not met the requirements for using a certificate as evidence (for example, if you did not get reasonable notice of this). The prosecutor has not shown what your blood-alcohol level was when you drove, or had care or control of, the vehicle. During the trial, listen to all the evidence to hear if the police, technician, and prosecutor all followed proper steps and if the prosecutor proved the case. Remember that the prosecutor must prove that you committed the crime. If the prosecutor does not prove all the parts of the crime, tell the judge you want to make a motion for a directed verdict. You do this after the prosecutor finishes presenting his or her case (often called the Crown s case). Tell the judge what it is that the prosecutor did not prove. If the judge agrees with you, you will be found not guilty and the trial will end. If the judge does not agree with your motion for a directed verdict (or if you do not make one), the trial will continue. Directed verdict motions often do not work because the prosecutor usually has some evidence for each part of the crime so be ready to defend yourself. Preparing your defence In preparing your defence, think about what evidence you have to use. Evidence can include documents, witnesses, or your own personal testimony (telling the court your side). your own evidence can hurt you get the guide Use evidence only if it helps you more than it could hurt you. It can hurt you because once you offer something as evidence, the prosecutor can use it against you to help fill in weak spots in the Crown s case. For more information about how to use witnesses, prepare questions, and decide whether to speak yourself, see the guide Representing Yourself in a Criminal Trial. 12 What to do if you are charged with a DRINKING AND DRIVING OFFENCE

13 To defend yourself against a charge of drinking and driving, you may be able to argue one of the following points: 1. I have evidence that contradicts the prosecutor s case. You can present evidence, and call witnesses to present evidence, that disagrees with the prosecutor s evidence. This may raise a reasonable doubt about whether you are guilty. You might present evidence or call witnesses to prove one or more of the following points: evidence to contradict the prosecutor's case You did not drive the vehicle. You did not have care or control of the vehicle. For example, maybe you were waiting in the vehicle for your friend. The police officer did not have the right to demand breath, blood, urine, or saliva samples, or a physical coordination test, or drug evaluation. For example, you took and passed the roadside screening test, so the police did not have good reason to ask for the breath sample. The breathalyzer malfunctioned, or was improperly operated, resulting in a reading of over.08 when, in fact, your blood alcohol level was lower than.08. Expert evidence would be required to support this. Your driving performance, appearance, and behaviour were caused by injuries or some other medical condition, not by being impaired. For example, you only had one drink all night, then had a car accident, and you could not talk properly because you hit your head. You had a reasonable excuse for refusing to provide a breath, blood, urine, or saliva sample, or to do a physical coordination test or have a drug evaluation. For example, you had a medical condition or injury that made it too difficult or likely to involve a risk to your health. What to do if you are charged with a DRINKING AND DRIVING OFFENCE 13

14 your rights under the Charter police must respect your rights 2. My Charter rights were violated. If the police got evidence by violating your rights under the Charter of Rights and Freedoms, the judge might not let the prosecutor use that evidence. And if that happens, you can ask the judge to dismiss the charge against you. Under the Charter, the police must do the following when they detain or arrest you. For example, when the police make a demand for a breathalyzer sample, they must: tell you immediately what they have detained you for, tell you immediately that you can talk to a lawyer, and let you do so in private before questioning you, give you access to a telephone, and tell you that you can get legal help for free. (The Legal Services Society has lawyers available 24 hours a day to talk over the phone for free to people who are in police custody.) If the police did not do all of these things, you can argue that they violated your rights. You would then argue that the prosecutor should not be able to use any statements you made or other evidence that the police got by violating your rights, such as the results of the breath samples. judge might throw out some evidence get legal advice about Charter violations However, the judge will not automatically throw out the evidence in question. You must also show that accepting the evidence will reflect badly on how justice is carried out in Canadian courts. If you plan to argue that your Charter rights were violated, talk to a lawyer before your trial. Judges expect you to tell the prosecutor in advance if you plan to use this type of argument. 14 What to do if you are charged with a DRINKING AND DRIVING OFFENCE

15 Closing your case After you have finished presenting your defence, you will close your case by telling the judge why you think the prosecutor did not prove that you are guilty beyond a reasonable doubt. This summary is called your submission. See the guide Representing Yourself in a Criminal Trial for more details on preparing submissions. closing your case What if the judge finds me guilty? For all drinking and driving offences (over.08, impaired driving or care and control, and failing or refusing without lawful excuse to comply with a demand), the Criminal Code sets minimum and maximum penalties. Criminal Code sets penalties Maximum penalties If the prosecutor treats your crime as a summary offence, the maximum penalty is a fine of $5,000 and/or 18 months in jail. If the prosecutor treats your crime as an indictable offence, the maximum penalty is five years in jail. fine, jail, loss of licence Minimum penalties The minimum penalties are the same for these offences, whether they are treated as summary or indictable offences. For a first offence, the minimum fine is $1,000 but you may get a higher fine than this and jail time. If you are convicted of a drinking and driving offence, the Criminal Code also prohibits you from driving for one to three years. Previous convictions If you have previous convictions for drinking and driving, the prosecutor can ask for stronger penalties. To do this, he or she must give you a Notice of Greater Punishment before you enter your plea. If the prosecutor proves that you were given this notice, and that you have been convicted of drinking and driving before, the judge must give you the following minimum sentence: previous convictions mean higher penalties What to do if you are charged with a DRINKING AND DRIVING OFFENCE 15

16 30 days in jail (for a second offence). You will also lose your driver s licence for two to five years. 120 days in jail (for a third or subsequent offence). You will also lose your driver s licence for not less than three years (not including the period you are in jail). severe penalties if you kill or injure someone insurance problems treatment for alcohol and/or drugs A judge can take away your driver s licence for longer, depending on your driving record and your criminal record. If you are registered in an approved ignition interlock program and also participate successfully in a remedial program specified by the Superintendent of Motor Vehicles, you may be allowed to get your driver s licence back sooner. Check with the Office of the Superintendent of Motor Vehicles for details. If your drinking and driving injured or killed someone, the penalties are severe. If you injure someone, the maximum jail sentence is 10 years. If you kill someone, the maximum penalty is life imprisonment. You may also lose your driver s licence for up to 10 years. A conviction can also affect your insurance. If you caused an accident, your insurance company can sue you for money it paid to others under your policy. You will have to pay to fix your car, and you may have to pay large amounts in damages if you injured or killed someone. If you need treatment for alcohol and/or drugs, the judge may give you a conditional discharge instead of a fine or jail sentence. This means you would be on probation with conditions, including that you get the treatment. You must present medical or other evidence from a witness (such as an addictions counsellor) and the judge must feel that your conditional discharge does not go against what is best for the public. 16 What to do if you are charged with a DRINKING AND DRIVING OFFENCE

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