Criminal Lawyers – Impaired Driving
Impaired Driving (DUI) Over 80 Charges
Our team of experienced Criminal defence Lawyers represent clients charged with Impaired Driving by drugs or alcohol, Over 80, charges across Ontario, including Mississauga, Brampton, Milton, Newmarket, Toronto, Oshawa, Orangeville, Hamilton, Barrie, Oakville, Burlington, Guelph, Kitchener, North York, and across Southwestern Ontario.
Defining Impaired Driving:
Impaired driving applies to all conveyances, including motor vehicles such as cars, trucks, snowmobiles, all-terrain vehicles, etc., boats and even aircraft and railway equipment.
Making a demand:
If you are, or were within the preceding 3 hours, operating a conveyance and a police officer has reason to suspect that you have alcohol and/or drugs in your body, a police officer may make a demand on you to:
- Provide a sample of your breath, at roadside, on an Approved Screening Device (ASD)
- Provide an oral fluid sample, at roadside, on Approved Drug Screening Equipment (ADSE)
- Participate in Standardized Field Sobriety Test (SFST)
Criminal Code of Canada:
Impaired Operation is found under Section 320.14(1)of the Criminal Code of Canada, which states that “Everyone commits an offence who
(a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;
(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;
(c) subject to subsection (6), has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation; or
(d) subject to subsection (7), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.
Operation causing bodily harm (2) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes bodily harm to another person. Marginal note: Operation causing death (3) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes the death of another person.“
Aggravating circumstances for sentencing purposes
Under section 320.22, it states that “A court imposing a sentence for an offence under any of sections 320.13 to 320.18 [all conveyance offences] shall consider, in addition to any other aggravating circumstances, the following:
- (a) the commission of the offence resulted in bodily harm to, or the death of, more than one person;
- (b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place;
- (c) a person under the age of 16 years was a passenger in the conveyance operated by the offender;
- (d) the offender was being remunerated for operating the conveyance;
- (e) the offender’s blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 mL of blood;
- (f) the offender was operating a large motor vehicle; and
- (g) the offender was not permitted, under a federal or provincial Act, to operate the conveyance.”
Punishment for Impaired Driving Offences
If you are convicted of an impaired driving offence, section 320.19 (1) states that, “Everyone who commits an offence under subsection 320.14(1) [impaired operation] is liable on conviction on indictment or on summary conviction
(a) to the following minimum punishment, namely,
- (i) for a first offence, a fine of $1,000,
- (ii) for a second offence, imprisonment for a term of 30 days, and
- (iii) for each subsequent offence, imprisonment for a term of 120 days;
- (b) if the offence is prosecuted by indictment, to imprisonment for a term of not more than 10 years; and
- (c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than two years less a day.
In order to defend an impaired driving charge, you need to hire an experienced criminal lawyer who will review your disclosure and defend your case with the proper defence(s). Our Criminal Lawyers have the experience to defend your impaired driving charge. Call us today for a free telephone consultation.
To understand if your drinking and driving case may have a meaningful defence, contact our Criminal Lawyers at Scardicchio Law Office Professional Corporation to discuss your unique circumstances. Contact us for a free telephone consultation and understand your impaired driving charge and find out how we can defend your case.
Sentencing on Impaired Driving Offence
Impaired Operation is a hybrid offence, and where there is a Summary conviction upon a finding of guilt, there are mandatory minimum sentences.
Everyone who commits an offence under subsection 320.14(4) is liable on summary conviction to a fine of not more than $1,000.
Minimum fines for high blood alcohol concentrations under section 320.14(3) states that “Despite subparagraphs (1)(a)(i) and (b)(i), every person who commits an offence under paragraph 320.14(1)(b) is liable, for a first offence, to:
(a) a fine of not less than $1,500, if the person’s blood alcohol concentration is equal to or exceeds 120 mg of alcohol in 100 mL of blood but is less than 160 mg of alcohol in 100 mL of blood; and
(b) a fine of not less than $2,000, if the person’s blood alcohol concentration is equal to or exceeds 160 mg of alcohol in 100 mL of blood.
Section 320.14(1)(a) – operation of a conveyance (vehicle) while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug.
Section 320.14(1)(b) – has within two hours after ceasing to operate a conveyance (vehicle), a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol within 100 mL of blood.
Section 320.14(1)(c) – has within two hours after ceasing to operate a conveyance (vehicle), a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation.
Section 320.14(1)(d) – has within two hours after ceasing to operate a conveyance (vehicle), a blood alcohol concentration and a blood drug concentration that is ual to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.
Section 320.14(2) – Operation causing bodily harm
Section 320.14(3) – Operation causing death
Section 320.14(4) – operation with low blood drug concentrations states that: “Subject to subsection (6) [operation while impaired – exception for drugs], everyone commits an offence who has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation and that is less than the concentration prescribed for the purposes of paragraph (1)(c) (impaired operation – within 2 hrs BAC exceeding regulations).”
Under section 752, impaired operation offences are also eligible for the Crown to file a Dangerous offender application, and/or a serious personal injury offence.
As of December 18, 2018, police no longer require a reasonable suspicion to demand a breath sample from a driver. What this means is that anyone who is operating a motor vehicle can be lawfully stopped by police and they can be required to provide a breath sample at the roadside in order to detect potential alcohol in their blood. Failure to comply with this demand will also result in criminal charges which carry the same, or greater, penalties as driving while impaired. This is called a “Refuse” charge.
Under the new legislation, a police officer can now demand that a driver provide an oral fluid sample to be tested with an ADSE at the roadside. If the oral fluid sample gives a positive result, the driver may be arrested and undergo additional testing. If the oral fluid sample gives a negative result, and the police officer continues to see indications of drug usage, they can demand that the driver participate in a Standardized Field Sobriety Test (SFST). If the driver passes the SFST, they are released. If the driver performs poorly on the SFST, they may be arrested. If the oral fluid sample gives a negative result, and the police officer doesn’t see indicators of impairment, the driver may be released.
Under new legislation, after the suspected drug-impaired driver is arrested, police can proceed in one, or both, of the following ways: (1) A police officer can demand that the impaired driver provide a blood sample. (2) Demand that the driver undergo a 12 step DRE evaluation at a police detachment. A “DRE” or Drug Recognition Expert evaluation involves clinical indicators (for example, blood pressure, body temperature, pulse, etc.) and measuring your pupil size in different lighting conditions.
What are the Exceptions to Impaired Operation charges?
The Exception for alcohol is found under subsection (5), which states that “No person commits an offence under paragraph (1)(b) [impaired operation – within 2 hrs BAC exceeding 80] if:
- (a) they consumed alcohol after ceasing to operate the conveyance;
(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and
- (c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) [proof by inference from breath or blood samples] or (2) [proof by inference of blood samples – concentration when sample taken] and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.”
- The Exception for drugs is found under subsection (6), which states that “No person commits an offence under paragraph (1)(c) [impaired operation – within 2 hrs BAC exceeding regulations] or subsection (4) [operation with low blood drug concentration] if
- (a) they consumed the drug after ceasing to operate the conveyance; and
- (b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of a bodily substance.”
- The Exception for the combination of alcohol and drug is found under subsection (7), which states that “No person commits an offence under paragraph (1)(d) [impaired operation – within 2 hrs BAC and drugs exceeding regulations] if
- (a) they consumed the drug or the alcohol or both after ceasing to operate the conveyance;
- (b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of a bodily substance; and
- (c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) [proof by inference from breath or blood samples] or (2) [proof by inference of blood samples – concentration when sample taken] and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration less than the blood alcohol concentration established under paragraph 320.38(c) [power to make regs re blood alcohol and blood drug concentration].”
“Justice denied anywhere diminishes justice everywhere.”
– Martin Luther King Jr.
Criminal Lawyers defending Impaired Driving Charges
Barrie – Bradford
Criminal Lawyers. Personal Injury Lawyers. Civil Litigation
The Results You Deserve
Our team of dedicated Criminal Lawyers vigorously defend your Impaired Driving criminal charges and work to get you the results you deserve. Contact us today for a free telepone consultation to discuss your case.
Do I give a statement to the police if I am charged with Assault?
If you have been charged with Assault, the police will likely bring you to the police station and ask for a statement. In the interview room you will be audio and video recorded. Other than cooperating by providing your name and address, we advise our clients not to provide a police statement as it will be used in court and may be used against you as an inculpatory statement and you may incriminate yourself.
My first court date is coming up. What can I expect?
On your first court date, if you are not in custody and you are unrepresented, you can expect to stand before a Justice of the Peace and advise the court whether you intend to hire a lawyer or seek legal aid assistance with your case. Covid-19 has drastically changed the manner in which you may attend your first court date. First appearances may be held by video conference Zoom or other methods as outlined by your release documents.
You may or may not receive a disclosure package from the Crown on this date. You will also be required to set a return date in order to advise the court as to how you will be proceedings with your case. It is advisable to secure legal representation prior to your first court date. A lawyer will be able to secure your rights from the beginning. For example, there are important statements about your case that may need to be addressed before the court and reflected on the record, which only an experienced criminal lawyer can do to protect your rights from the start. Having a lawyer from the beginning of your case will give you the leading edge to ensure the best possible outcome.
My Undertaking prohibits me from leaving the Province of Ontario. Can I go on a vacation?
An undertaking includes the terms of your release for the duration of your pending charges. Commonly, the obligation to reside within the Province of Ontario must be followed. Our Criminal Lawyers routinely negotiate your terms of release with the Crown and have the terms varied to accomodate your individual needs.
I was convicted and I need a Pardon. What should I know?
A pardon, now called a “Record Suspension”, is an application to the Government of Canada to remove your criminal record, and create an ability to remove stigma and make a fresh start for travel, employment, and immigration. A person applying for a pardon must have completed their sentence, including Parole/Probation, and have paid any fines or financial penalties ordered. They must have served a required waiting period, which is now 5 years for Summary offences / 10 years for Indictable offences. The new legislation changed this wait period from the previous wait period of 3 years for Summary and 5 years Indictable. Individuals must also have demonstrated that they are law-abiding citizens. A Notice of changes to the Pardons program under Bill C-10, Amendments to the Criminal Records Act (CRA), came into effect on March 13th, 2012. Individuals convicted of sexual offences against minors (with certain exceptions) and those who have been convicted of more than 3 indictable offences, each with a sentence of 2 or more years, are now ineligible for a record suspension.
What are the Immigration Consequences if I am found guilty of a crime in Canada?
Depending on the type of offence, there are specific immigration consequences that an individual who is not a Canadian citizen needs to be aware of. For example, if you are a Permanent Resident, with a single ‘Summary’ (non-hybrid) offence and you receive a conviction in which your sentence is less than 6 months in jail, then you will still be admissible. The same is true for a Foreign National, a Protected Person (i.e. Convention Refugee), and Refugee Claimant. If you have two Summary (non-hybrid) offences that did not arise out of the same occurrence, and your conviction disposition is imprisonment for less than six months, then a Permanent Resident will still be admissible. However, a Foreign National will be inadmissible without appeal. Only a Convention Refugee, Protected Persons, or Claimant Refugee, will be admissible with appeal or refugee claim maintained. The issue arises where a Permanent Resident is convicted of a hybrid or indictable offence and a person receives a conviction with a disposition of imprisonment equal to or more than six months. Then, at Permanent Resident will be inadmissible without appeal. Our Criminal Lawyers understand the consequences of a criminal conviction on a persons status in Canada. We also have connections with well-known Immigration Lawyers who can advise you about the consequences. We always recommend speaking directly to an immigration lawyer for specific questions about your status in Canada. However, our criminal lawyers work very hard to ensure that your status will not be affected by specific outcomes of your charge. Contact our office today to discuss your criminal charge. Ask us about the Faster Removal of Foreign Criminals Act also.
Can I serve my jail term on the weekends?
Yes. If you have been sentence to serve time in jail, and the sentence imposed on you is 90-days or less, you may be able to convince the Judge that serving your jail term on weekends is beneficial to you. You may need to prove that you have a full-time job or a family to support and this may persuade the Judge to consider what is called an “Intermittent Sentence” for you.
What is "house arrest"?
“House Arrest” or a Conditional Sentence is an imprisonment sentence, except the offender serves his time outside jail and usually under strict conditions. There are restrictions on when a judge may impose this type of sentence. For example, the sentence of imprisonment must be less than 2 years; there is not a minimum sentence of jail-time for your offence; it is not a serious personal injury offence, terrorism offence, or a criminal organization offence; etc.
What is disclosure?
Disclosure is material information that the Crown Attorney must disclose to you, which it has in its possession or control and that is not clearly irrelevant. The right to disclosure is founded in the case R v Stinchcombe  3 SCR 326 at paragraphs 339 and 343. The Crown has an obligation to obtain from an investigative agency any relevant information that it is aware of and must “take reasonable step to inquire about … relevant information.” The Crown’s obligation is also that they must preserve all relevant evidence. This is a joint obligation on the Crown and police. Usually, on the first court date, you will receive a package of disclosure. It is important to hire criminal counsel prior to your first court appearance because there are specific rights that must be stated on the record if disclosure is missing or incomplete.
What is the right to remain silent?
The Right to Remain Silent is your Charter right and it is protected under section 7 and 11(c) of the Canadian Charter of Rights and Freedoms. You may not be compelled as a witness against yourself in a criminal proceeding, and only voluntary statements that are made to police are admissible into evidence. Police must inform an accused about their right to legal counsel. Any statements made to police prior to being informed of your right to legal counsel are to be considered involuntarily compelled and are inadmissible as evidence. After being informed of the right to counsel, an accused person may choose to voluntarily answer questions and those statements would be admissible. We always recommend that you speak to a criminal lawyer before you make any statements to the police. The best advice we can give to you if you have been charged and are in police custody being questioned is to not speak and ask for legal counsel or duty counsel.
How long will my criminal case take to complete?
The answer is, it depends. Your case may resolve quickly depending on many factors. It is important to disclose as much information as possible to your Criminal Lawyer in order for a proper time assessment to be made on your particular matter.
What is a no-contact Order?
A no-contact Order by the court means that you may no contact a person either directly or indirectly. Communication through Facebook or other internet platforms are also not allowed. Contact our Criminal Lawyers to ask about your no-contact Order and see how we can help you.
I am a Young Person and have been charged with a criminal offence. Do I need a Lawyer?
The Youth Criminal Justice Act contains many provisions that build on the use of extrajudicial measures for less serious offences. In order to ensure that your charge follows the appropriate route within the court system, you need a competent criminal lawyer to represent you. Only a lawyer who knows the youth court system very well will be able to ensure that you do not face harsh penalties as a result of your charge.
Can the complainant “take-back” the charges of assault against me?
No. In Canada, a complainant cannot simply take away the statement or complaint they made to the police. Once a charge of assault has been laid by police, your charges will be dealt with by the Crown Attorney and in court. An experienced Criminal Lawyer who defends Assault charges routinely will be able to properly evaluate your particular case and defend your assault charges in court.
What is Domestic Assault?
There is no separate charge for a Domestic Assault under the Criminal Code of Canada. Under the Code, Assault, including an assault of a domestic nature, is found under Section 266 of the Code. Domestic Assaults, however, are treated differently within the courts in Ontario. There are usually domestic violence Crown Attorney’s who form a domestic violence team at each court house. These Crown Attorney’s are well versed in domestic related cases and vigorously pursue these types of cases. Many people accused with domestic assault charges ask whether the charge can be “thrown out” if the complainant “takes back” or recants their initial complaint to the police. The simple answer is, no. There are some circumstances, however, that an experienced domestic assault defence lawyer will be able to defend your domestic assault charges where a complainant has recanted. It is important to hire a Criminal Lawyer immediately before your first court date so your lawyer can make the appropriate requests and submissions during your initial court appearances in order to protect your rights.
I have been charged with Domestic Assault. Will the charges be dropped?
If you have been charged with a domestic assault, it is important to contact a Lawyer immediately to discuss your case. Once the charges are laid by the Police, it is up to the Crown Attorney to proceed with your charges. It is seldom the case that a Crown Attorney will throw your case out unless there are extraordinary circumstances. A Domestic Violence Crown will fully prosecute your case and you will need a qualified Criminal Lawyer to ensure that your rights are fully protected throughout your proceedings.
Can my charges be withdrawn if I am charged with an Assault offence?
An experienced Criminal Lawyer will be able to properly defend your Assault charge with a view to obtaining a withdrawal. Our Criminal Lawyers will defend your assault charges and resolve your case to get you the appropriate results. Depending on the evidence, it is possible to obtain a withdrawal in an assault case.
How do I remove my Fingerprints from the police?
Our services include writing to the appropriate police agency and requesting that your fingerprints and photograph are removed from the police system. If your charge has been withdrawn or discharged, we offer this service in our retainer fee at no additional charges.
What is a Peace Bond?
A Peace Bond is a court order that requires you to keep the peace and be of good behaviour for a period of time. Essentially, during this time it is important to not be charged with another criminal offence. A Peace Bond is not a plea of guilt. It is essentially a withdrawal of your charges on your undertaking to enter into the order. Typically, a Peace Bond will last 12-months. Other orders may be recommended, such as to carry no weapons or to not have contact with a person or place.
What is a Surety?
If you have been asked to be a Surety for someone, it is important to know what this means. A Surety is a person who promises the court that they will supervise an accused person while they are out on bail. The Surety is usually responsible for ensuring that the accused attends all his or her court dates and adheres to the bail conditions of release. A Surety should be a Canadian citizen or permanent resident, be at least 18 years old and generally not have a criminal record. If you are the alleged victim of the present offence, then you cannot be the Surety.
What is a Probation Order?
A Probation Order is a court order on sentencing to do, or not do, certain things for a period of time. Reporting to a Probation Officer usually weekly or monthly is involved. A Probation Officer does have the power to charge you with a further offence if you break any probation orders or do not report to them.
I do not want to plead guilty. What are my next steps?
Our Criminal Lawyers will never recommend that you plead guilty to any offence unless you admit to the facts and choose to do so. If a resolution of your charge is not likely, then you may consider setting a trial date to fully defend your charges.
What is a Discharge?
If you decide to plead guilty, the Criminal Code of Canada provides that you may receive a discharge as a sentence for certain criminal charges. A court may grant a Conditional Discharge or an Absolute Discharge only for offences with no minimum penalty, and a maximum penalty of less than fourteen years. An Absolute Discharge and a Conditional Discharge means that although you are found guilty, no conviction is registered against you. However, a record of an Absolute Discharge or Conditional Discharge is kept by the Canadian Police Information Centre (CPIC) and by the police agency that laid the charge and is only removed (‘purged’) from your police record after 1 and 3 years, respectively.
What if I cannot afford a criminal lawyer?
If you cannot afford a criminal lawyer, our law firm makes specific arrangements with you so that you can make easy payments towards your block-fee bills on a monthly basis. We encourage you to discuss with our lawyers how this fee arrangement may benefit you.
I am not a Canadian citizen and I have been charged with a crime. What does this mean for Immigration?
A criminal conviction may affect your ability to become a Canadian citizen. No matter how long you have lived in Canada, if you are charged with a serious crime, you may face serious immigration consequences relating to your permanent residence status. The Faster Removal of Foreign Criminals Act received Royal Assent on June 19, 2013, which may affect your case. Our Criminal Lawyers have handled many criminal cases where individuals have been charged and face immigration consequences. We work through the criminal justice system to ensure that a criminal conviction will not meet the “serious” status which would ultimately affect your immigration status.
Criminal Lawyers – Impaired Driving
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