How to Fight a DUI

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The best thing you can do to avoid a DUI is to practice safe driving. Limit consumption of alcohol and cannabis, and don’t drive high. Appoint a designated driver, call a cab or rideshare, or find another place to stay.

But we’re all human, and sometimes we make mistakes. Say you’ve been charged with driving under the influence – what do I do if I get a DUI?

First, do not panic. There may be legal recourse, and a good lawyer will help you navigate the path ahead. The consequences of an impaired driving charge range from moderate to extreme, but as the most common criminal charge in Canada, we will find you an experienced lawyer who can help.

The first question a lawyer might ask is:

Was the test legit? The Government of Canada website tells us that “mandatory alcohol screening can only be used if you, as the driver, are in care and control of the vehicle, have been lawfully stopped, and if the police officer has the approved screening device at hand.”

This means that:

1)     Only the driver can be tested

2)     The car must be lawfully stopped

3)     The officer must have the breathalyser handy

However, the police know this and will usually only administer a test when it is legitimate. You can always be lawfully pulled over so the police can determine if your license is valid, if they suspect you are intoxicated, and to check and see if the vehicle is roadworthy. They do not need to see you break the law to pull you over.

The Two-Hour Rule:

In 2018, Canada’s impaired driving laws changed. You can now be convicted if your blood alcohol level was 80mg (0.08) within two hours of driving. The same applies to cannabis, with the legal limit being set at 5ng/ml (nanograms per millilitre). If you mix alcohol and cannabis, the legal limit for both is halved. This means that you cannot drive with a blood alcohol of 0.05 if there is 2.5ng/ml of cannabis in your system.

The two-hour rule was established to eliminate two defenses to a DUI charge – the “bolus” defense and the “intervening” defense. The first is like a “rising BAC level” defense, arguing that the driver blew above a 0.08 but that their level was lower at the time of driving, because they drank just before or while driving. The second argument is that the driver drank to calm their nerves after an accident, so the drinking occurred in the intervening period between the driving and the testing.

This has made it more difficult to get away with a DUI charge. However, there are other arguments that your lawyer can still make. The two ways to get out of a DUI are:

1)     Your lawyer finds a flaw in the Crown’s case so they cannot prosecute

2)     You make a plea bargain for a careless driving charge instead of a DUI

Now, there are a number of flaws your lawyer can find in the case to make it go away. These include:

a)     The Carter Defense – when the time between the traffic stop and the first test is more than 2 hours

b)     Indicators of Impairment – when there are conflicting reports from police officers about why they thought you were impaired

c)     “Care and Control” – The police must prove you were the driver, which can be difficult following an accident

d)     Breathalyzer Bungle – If the officer that pulls you over has to wait for a breathalyzer to arrive, or if they cannot explain how to use it properly to the judge, the crown may have no case against you. They must also prove that the machine was properly maintained and operated

e)     Right to legal aid – If you were prevented from contacting your lawyer immediately, or if there were no steps taken to accommodate your right to legal counsel, then the case may be dropped entirely.

It is more common to take a plea deal than it is to get a DUI charge dropped. The second option is favoured because you avoid a criminal charge and conviction, even when there is overwhelming evidence that you were driving while under the influence.

A plea bargain can be a very good option if the reading from the breathalyzer is close to the legal limit. If the reading is close to a 0.1, the accuracy of the test can be called into question. Because a DUI can really ruin someone’s life – they can lose their job and future employment opportunities – a good lawyer can argue that it is in the best interest of the public that you keep your job, learn your lesson, and take a careless driving charge instead of the DUI.

If you are found guilty of a DUI in Canada, you have the following to look forward to:

1.     License suspension – 12 months for the first offence

2.     Fines - $1,000 for the first offence, higher with a higher BAC, up to $2,000.

3.     Jail time – 30 days for second offence, 120 days for the third offence; maximum of 10 years

4.     Criminal conviction – A permanent stain on your record that makes your life more difficult

If you kill someone while driving under the influence, you could go to jail for life, even on your first offence. No matter what kind of damage is done, you must immediately find a lawyer to assess your case so they can pursue the best course of action.

Charged with a DUI? We will find you a lawyer who can help.

Provincial Rules:

Each province and territory has their own set of additional rules, regulations, and consequences for a DUI. Some are much more severe than others. Check the government of Canada website for more information about additional penalties and laws that apply to you.