Have you been charged with impaired driving, a DUI, or driving 80 and over in Alberta? An impaired driving lawyer will help you protect your rights and explain the legal implications of your charges. We have handled hundreds of DUI cases and have the experience necessary to present and aggressive defence strategy on your behalf. If you have been charged with impaired driving, we advise you to contact our office immediately and seek legal counsel.
A charge of impaired driving alleges that the accused person operated a motor vehicle while their ability to do so was impaired to any degree by alcohol or drug or a combination of both. This charge is typically proved by the Crown through “indicia of impairment”, e.g. evidence of poor driving pattern, smell of alcohol, open liquor in the vehicle, flushed face, bloodshot eyes, stumbling gait, etc.
A charge of driving 80 and over alleges that the accused person operated a motor vehicle while they had a blood alcohol content of 80 mg per 100 mL of blood or over. This charge does not require the Crown to prove the accused person was actually impaired by alcohol – it is presumed that an accused person with a blood alcohol content equal to or over 80 is impaired. All that the Crown needs to prove is that a valid breath test was conducted and the accused person blew 80 or over.
It is a criminal offence to refuse or to fail to provide a breath sample when a valid demand for such is made by an officer. Officers are empowered by legislation to demand samples of breath in certain situations. The most relevant of these is the mandatory alcohol screening demand. Under recent legislation, officers may demand a breath sample from anyone they pull over so long as they have an approved screening device with them. Refusing or failing to provide a sample to a demand like the mandatory screening demand will result in a criminal charge equivalent, and sometimes more serious, than a simple impaired charge.
A typical impaired investigation begins with an officer effecting a traffic stop. The traffic stop is likely initiated by a poor driving pattern or a traffic violation, although it can also be initiated for as simple a reason as to check for vehicle documents. Once pulled over, the officer – if they have an ASD device with them – may make a mandatory alcohol screening demand requiring the driver to provide a breath sample into an approved screening device. The officer does not require grounds to make a mandatory screening demand. If the officer does not have an ASD with them, then they must formulate a reasonable suspicion that the driver has alcohol in their body. Officers do this by looking for indicia of impairment: bloodshot eyes, smell of alcohol, open liquor, etc. Once enough indicia are observed, the officer can make an ASD demand requiring the driver to provide a breath sample. If the sample provided registers a FAIL – meaning the driver is somewhere over the legal limit – then the officer will effect an arrest for impaired driving and have the driver brought back to a police detachment for an evidentiary breath test – the breath test that actually establishes the driver’s blood alcohol content. The driver’s vehicle will be impounded.
Once back at the detachment, the officer must provide the driver with access to counsel, which usually involves placing the driver in a private phone room with access to a telephone. Drivers can take advantage of the phone room to contact counsel and discuss their legal rights. After the driver has exercised their rights to counsel, the officer will take the driver to the “breath room”, where the approved instrument, capable of measuring blood alcohol content, is housed. There another officer qualified to operate the approved instrument will take two breath samples from the driver, of which the lower reading will be used. If the lowest of the two readings is equal to or above the legal limit of 80, then the arresting officer will lay a charge of 80 and over. The officer will also typically lay an impaired driving charge as well, as they will likely have observed indicia of impairment throughout the above investigation.
At the end of the investigation, the arresting officer will often release the driver on promise to appear in court for their first court appearance. The driver will also receive other documents, such as their tow form and provincial driving suspension.
The Criminal Code provides mandatory minimums for impaired driving, 80 and over, and refusal or failure to provide a sample. For a first offence, the minimum is a $1000 fine and 1-year driving prohibition. For a second offences, the minimum is 30 days incarceration and a 2-year driving prohibition. For a third offence, the minimum is 120 days incarceration and a 3-year driving prohibition. Penalties for a first offence increase in dollar amount if the blood alcohol content of the driver is equal to or exceeds 120 mg of alcohol in 100 mL of blood. Moreover, a first offence for a refusal or failure to provide a sample begins at $1500 in order to prevent drivers from refusing to blow simply so they can get a lesser fine for a lower blood alcohol content. Finally, there is an immediate provincial suspension of the ability to drive that begins with the charge.
An impaired driving conviction, and the resulting loss of the ability to drive, can have a significant impact on an accused person’s life, especially on their employment. Moreover, impaired trials are significantly more complex than the average criminal proceeding. Many impaired trials involve Charter litigation – arguments about whether the accused’s Charter rights have been violated and whether that should result in the exclusion of evidence. Many impaired trials require careful cross-examination of the investigating police officer. Many impaired trials involve understanding the complex legislative scheme governing breath demands and breath samples. Getting the advice of defence counsel can help you understand this process and your defences, allowing you to make informed decisions about your legal interests.
If you have any questions, contact our offices now so we can help address you or your loved one’s legal jeopardy. We are available 24/7. We are forceful advocates and we ensure that our clients throughout Alberta are provided with the best defence possible.