Drinking and driving is not illegal per se. However, driving while impaired or while one’s blood alcohol level exceeds 80 milligrams of alcohol in 100 milliliters of blood is illegal.
These defences can be technical in nature to overcome the prosecution’s attempt to prove the case. It is the role of the defence lawyer is to defend these cases in any ethical way including technical defences or factual defences.
In terms of impairment by alcohol or drug, the manner of driving, the responsiveness of the driver to questions asked by the police or any other of the numerous indicia of the effects of alcohol could cause an officer to find that they have reasonable grounds to believe that the driver is impaired in order to arrest the driver.
The offence of “over 80” is determined, usually, by providing two samples of breath into an approved instrument, an intoxilyzer or breathalyzer. This machine provides an analysis of the alcohol concentration in the bloodstream but it does so by examining the breath of the suspect. In some situations, a sample of blood may be obtained for analysis to determine the blood to alcohol concentration.
New legislation, which is coming into force, will dramatically change the playing field. The new legislation involves amendments to the present law of impaired driving by alcohol and by drug. More than likely, there will be constitutional challenges to overturn the new legislation for a variety of reasons.
The defences in these cases often require an application brought under one of the provisions of the Canadian Charter of Rights and Freedoms. Under the Charter, Canadians have the right to be free from unreasonable search and seizure, the right to be free from arbitrary detention and the right to retain and instruct counsel without delay, Roadside investigations often involve some or all of these constitutionally protected rights. For example, the police may have demanded a roadside sample of breath without having formed the required “reasonable suspicion” that alcohol is in the suspect’s system. Another common situation occurs where the police inexplicably take too long in obtaining the breath samples not meeting the “as soon as practical”
requirement. These situations, and many others may result in a breach of the Charter and the evidence may be excluded leading to an acquittal.
Occasionally, these offences require a much more technical defence. Whatever the situation, a defence lawyer with experience forcefully arguing the case is necessary given the large stakes involved in such a case since a conviction will include the loss of driving privileges as well as other sanctions.