INTRODUCTION

Getting charged by the police is stressful

I think you’ll agree with me that getting a criminal charge by the police for DUI / Impaired is stressful.

And, It’s confusing

What makes it worse, there’s so much information online.  It’s hard to find real answers.

A criminal conviction can destroy your ability to work.

The penalties for Impaired Driving are severe.  Even a first-time conviction can be life-changing.

There’s a minimum of 1 Year license suspension, treatment programs. Also, there are huge fines and possible imprisonment.

Under the Criminal Code, penalties include: fines, possible  jail time, or both, and. treatment programs and a licence suspension.

Bottom line?

Impaired Driving penalties can destroy your life.  But, it doesn’t need to be that way.

How to fight this charge

In this post, I’m going to give the information you need to understand this charge. Knowledge is power.  Being informed puts you in a better position to fight this charge in order to get the best outcome possible.

Just a quick note before you dive into this post.

Yes, I’m providing really valuable information here.  If I were charged with Impaired Driving in Ontario, this is the information that I would want to know.  But to be clear, I am NOT giving you legal advice. Everyone’s case is different. If you want to speak with a lawyer about your case, give me (or any lawyer) a call.  The call is free.

CHAPTER 1

How the police detect impaired drivers

There are 4 ways in which the police are trained to detect impaired drivers:

To know how to fight the charge, it’s important to the ways in which the police are permitted to pull you over.

Standardized Field Sobriety Test.

If a police officer suspects that a driver is impaired by drugs or alcohol, the officer may carry out a roadside standardized field sobriety test. If a driver fails the test, they can be immediately suspended from driving and face criminal impaired driving charges.

Breath Testing

A police officer in the lawful exercise of their powers can demand a breath sample at the roadside from any driver they stop, to determine the individual’s blood alcohol concentration. If a driver fails the test, or refuses to take it, they can be immediately suspended from driving and face criminal impaired driving or related charges.

Drug Recognition Evaluation

If an officer has reasonable grounds to believe that a driver is impaired, a drug recognition evaluation may be carried out by a qualified officer at a police station. The test helps determine if the impairment is caused by drugs. If a driver fails the test, they can be immediately suspended from driving and face criminal impaired driving charges.

Approved Drug Screening Devices

If a police officer suspects that a driver has drugs in the body, they may demand an oral fluid sample. If presence of a drug is detected, young, novice and commercial drivers can be immediately suspended from driving.

CHAPTER 4

Who Is Involved in Your Legal Process

To get the best outcome for your Stunt Driving, it’s important to know how our legal system works and who the people are that will be involved in your case.

Our legal system works like a “boxing match” or “MMA fight”.

Our court system is designed to have two people fighting it out with a referee there to make sure each side is following the rules.

There are 3 important people that matter in your legal process.

1. Important Person #1: You – You have been charged.  You are known as the “Defendant”.  You can either defend yourself or have a lawyer defend you.
2. Important Person #2: The Prosecutor – He or she represents the province of Ontario. If your case goes to trial, then the Police Officer will be asked to attend your trial to provide the evidence.
3. Important Person #3: The Judge – He or she is the “referee”.

These 3 important people each have an important role in your legal process.

Your Role – You have been charged with Stunt Driving.

• Your job is to defend yourself against the charge.  If you hire a lawyer, your lawyer’s job will be to defend you.

The Prosecutor’s Role – His or her job is to convict you of Impaired Driving.

• The Prosecutor is NOT your friend.  Yes, they may be nice.  They may be pleasant to deal with.  But, their job is NOT to be your friend.
• The Prosecutor needs to decide whether it makes sense to move ahead with your Stunt Driving charge given the facts of the case.
• If the Prosecutor proceeds with the case against you, the Prosecutor needs to prove that you, in fact, drove over the legal limit of blood alcohol.

The Judge’s Role – He or she is the “referee” in your fight.

• In criminal court, your case will be overseen by a Judge.
• The Judge is NOT advocating for you.  Nor are they advocating for the Prosecutor.  The Judge is like a referee. They are there to make sure all the rules are being followed.

CHAPTER 5

Getting Your Charges DUI / Impaired charges Withdrawn (Even if You’re Guilty)

One of the most important questions we get at our law firm is whether someone can get their charges withdrawn or dismissed.

And the answer is, “maybe.”

It may be possible, but it is always dependent upon specific facts of your case.

And in almost every case, getting your charges dismissed relies on a document called the “Canadian Charter of Rights and Freedoms.”

You may have heard about this “Charter” in the news, social media, or TV. And because the Charter is so important, it’s worth understanding how the Charter may be used by your lawyer to get your charges withdrawn.

What Is The “Canadian Charter of Rights and Freedoms”?

The Canadian Charter of Rights and Freedoms sets out those rights and freedoms that Canadians believe are necessary for a free and democratic society. The Charter is one part of the Canadian Constitution. And, the Constitution is a set of laws containing the basic rules about how our country operates.

Why Is The Charter So Important?

The Charter is important because it protects basic rights and freedoms essential to keeping Canada a free and democratic society.

In the context of a criminal charge, this is incredibly important because the Charter ensures that the government, or anyone acting on its behalf, doesn’t take away or interfere with your rights or freedoms unreasonably.

And these aren’t just words. These words have real power and real meaning.

The Charter is effectively a rule book. Everyone acting on behalf of the government (including the police and the crown) must follow these rules.

And these rules are NOT optional. If these rules are not followed in the context of your criminal charge, then your charges may get withdrawn.

Now the Charter has 34 sections. Not every section has applicability to a criminal charge. But many have been interpreted by courts since the early 1980s when the Charter was added to the Constitution.

There have been thousands of cases that have gone to court to interpret the meaning of the Charter. And these court rulings effectively flesh out in more detail, the RULES that the police and the crown must follow on how they must conduct their case against you.

In theory, that sounds easy. A court makes a ruling, and the police and crowns read those cases – which are effectively the rules on how they have to do their job.

But we are all human, and we all make mistakes, including the police and the crowns. But when they make a mistake, that mistake, if it breaches your charter right, may result in a case getting thrown out and withdrawn.

And if that happens, you walk away as if nothing happened.

CHAPTER 6

Example #1 – How the right to the presumption of innocence may get your charges withdrawn

Every Canadian has the right to the “presumption of innocence.”

This right is guaranteed in the Charter of Rights and Freedoms.

According to Section 11(d) of the Charter: – “Any person charged with an offence has the right to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal.

Let’s look into your right to be presumed innocent in the context of talking to the police.

Many people make the mistake that they believe that they can “talk their way out of it by speaking to police when arrested.” Even more common, many people believe that if they refuse to answer a police officer’s questions, it makes them look guilty.

The most important thing to understand is that it is NOT up to the accused to prove they are innocent. The onus is on the government to prove that the accused is guilty beyond a reasonable doubt.

While I can speak at great length about all the nuances of what this means, it is best to look at it this way.

When police arrest you, they believe you have committed a crime.

When asking questions, while the police may appear to have your best interests in mind, they don’t. The police are looking for evidence to help reinforce their belief that you are guilty.

The police may act friendly and polite, and while that may be sincere, they are also trying to gain your trust to get you to talk. In most cases, there is nothing to be gained speaking to police at the time of your arrest.

You should never waive your right to speak to a lawyer because you believe it makes you look “guilty” if you don’t answer questions. Only on the rarest of occasions, for reasons of giving an alibi, would you want to speak to the police. But it would be best if you only did so after speaking with a lawyer that you trust.

Bottom line.

In our justice system, the trier of fact (a Judge or Jury) is never allowed to make any inferences from you exercising your right to silence.

If the trier of fact does make an inference or conclusion about exercising your right to remain silent, then the charges against you may get withdrawn.

CHAPTER 7

Example #2: How the evidence against you can be used to get your charges withdrawn

Every Canadian has a right to be secure against an unreasonable search or seizure. This right is covered in Section 8 of the Charter. And this rule must be followed by the police when they arrest you.

Here is the rule that the police must follow. The rule says the police cannot just search or seize your property unless they have what’s called “reasonable and probable grounds” that you either committed a crime or were in the process of committing a crime.

And, a mere “suspicion” is NOT enough to justify a search or seizure. If you are not under arrest and the police search your property and find something incriminating against you, they cannot use that evidence, and the charge may get withdrawn.

Let me give you an example of a client that we had where we used this charter right to get the charges withdrawn.v

Let’s call this client Jon Doe.

Now, Jon Doe was in the park, and a police officer thought he saw Jon do something suspicious. From the evidence we were given, it was clear that the police officer has a suspicion that Jon completed a drug transaction. Jon was carrying a backpack, and the officer demanded that Jon open the backpack, and the officer found drugs. And our client was charged with possession.

Now, here is where the Charter comes into play. And here is where the officer did not follow the Charter rules and made a mistake.

The officer cannot approach Jon and ask to see what was in his backpack. The officer would need to have reasonable and probable grounds to believe that Jon either committed a crime or was in the process of committing a crime.

In this case, the officer has a suspicion – a gut feeling – that something illegal happened. But, a gut feeling, or suspicion, does not meet the threshold where the officer can search your property.

In this case, the fact that drugs were found, that evidence is not admissible b/c it violated Jon’s charter right protection from an unreasonable search or seizure.

And the charges were withdrawn

CHAPTER 8

Example #3: How the circumstances of your arrest may get your charges withdrawn

Under Section 9 of the Charter, you have a “right not to be arbitrarily detained or imprisoned.”

When I look at evidence of charges against my clients and see a Section 9 issue, clients are often surprised because when you think about “detained” or “imprisoned,” most people think about actually being jailed.

But that doesn’t need to be the case.

The act of merely stopping someone on the street, without proper reason, may breach your right to not being arbitrarily detained or imprisoned. So you can be improperly detained, even on the street.

Let me give you an example.

If you are walking down a street, and a police officer asks you to stop because they want to investigate something, unless he informs you that you are either a) under arrest, or b) he is investigating you for a crime — you are not compelled to stop.

If the police officer ordered you to stop without proper reason – that order to stop is, in fact, you being arbitrarily detained on the open street. Any evidence the police find after stopping you (e.g. so if they find drugs, a weapon, or stolen goods, etc.) that evidence cannot be used against you in court.

Now, the threshold for investigative detention is lower than arrest. However, the police officer still must have reasonable grounds to suspect that you have either committed a crime or are in the process of committing a crime.

Even based on police experience, a simple hunch, or gut feeling, does not meet that threshold.

So the circumstances surrounding your arrest and interaction with the police are critical. These circumstances must be evaluated in detail in the context of your charter rights.

And, in some circumstances, may lead to charges against you, being withdrawn.