Defending Impaired Driving ChargesAndrew Captan
There are 3 main DUI charges under the Criminal Code of Canada: (1) Excess Blood Alcohol Level; (2) Impaired Operation or Care / Control (3) Refuse or Fail to Provide Breath Sample. It’s possible to be charged with any combination of the three charges, as each deals with separate legal infractions.
The Impaired Driving (or Care / Control) charge is a very commonly laid DUI charge. For the Crown to prove the offence, there has to be evidence that the accused consumed alcohol of drugs, operated (or had care or control) of a conveyance, and the accused’s ability to drive was at least slightly affected by the consumption of that alcohol or drug. It is a misconception that it is a criminal offence to “drink” and “drive”. The alcohol consumed must have an impact on you such that it causes your ability to drive to be effected.
The Crown usually leads circumstantial evidence to prove this charge, unless the accused, at some point in the investigation, admits that his/her driving was affected by the consumption of the intoxicating substance. It is well accepted that if the Crown’s case is solely based on circumstantial evidence, then the only way the Court (or Jury) can convict is if a finding is made that the onl reasonable inference to be drawn is that the prohibited activity in question occurred. In the context of an Impaired Driving charge, the Crown would have to prove that the only reasonable inference, based on all the evidence, is that the accused’s ability to drive was at least slightly impaired.
The Defence will try and raise a reasonable doubt with respect to that conclusion. If the Court finds that there is a reasonable doubt, then the acccused is entitled to an acquiital.
Evidence that is commonly elicited to establish impaired abilit to drive include: (1) the manner of driving; (2) physical test results; (3) statements; (4) symptomology – physical, behavioural and mental indicia of impairment, such as slurred speech, bloodshot or watery eyes, balance and coordination issues, etc. Courts will usually require at least some evidence surrounding manner of driving. For example, if a person is stopped and has bloodshot eyes, is slurring speech and was a bit wobbly on his/her feet, a Court would likely dismiss an Impaired charge simply on that evidence, as the Crown failed to connect these attributes to the person’s ability to drive, which is the foundation of this offence.
Defence lawyers will carefully review police officers’ notes, video surveillance, amongst other evidence, to determine how to create the reasonable doubt referred to above.