Is Driving Under The Influence a Criminal Offence in Canada?

Do you know that a DUI charge has been a Federal Criminal Offence in Canada since 1921? It is, and it is also the most common type of criminal charge in the entire nation. Luckily for those convicted with driving under the influence, it is possible to get a record suspension or a DUI pardon in Canada.

What Is DUI?

A DUI is a charge for driving under the influence. In Canada, it refers to operating a motor vehicle under the influence of drugs or alcohol and is categorized as a criminal offence.

The above means that anyone driving with a blood alcohol level of more than 80 milligrams of alcohol per 100 milliliters of blood in Canada can be punished under the Criminal Code. This is usually found out by a breath test that can be administered on it’s own or after a failed physical coordination test.

It is normal for a police officer to ask someone suspected of being under the influence to undergo the mentioned tests to ensure road safety; more so if someone has been observed to be driving erratically or is smelling strongly of alcohol. An evaluating officer may also request for a urine or blood sample to test for drugs in order to determine if someone has been driving under the influence of such.

A DUI Arrest and Conviction

Having a high blood alcohol level or failing a physical coordination test can lead to a DUI arrest. Failure to comply with the tests can result to license suspension as well.

Note that fines and suspensions will have some differences depending on which province and territory a suspected DUI occurred. The severity of the consequences are dependent on whether someone was harmed and/or how cooperative the person being arrested is.

Charges may also be dropped if it was later revealed that the taking of breath, urine, and blood samples were done in violation of The Canadian Charter of Rights and Freedoms particularly Section 8.

It should be noted that penalties and suspensions may still be dealt with even though someone passed the blood alcohol level assessment and other related tests. Some people may simply have a lower tolerance and different provinces and territories each have their own parameters of assessment.

Impaired Driving in Canada

The Government of Canada has introduced stiffer penalties and more rigid restrictions for impaired driving since 2008. A $1000 fine for the first offence and 30 and 120 days jail time for the second and 3rd offences.

People convicted of a DUI charge will have it as a criminal record attached to their name until they get a DUI pardon or a record suspension. Having a DUI charge attached to one’s name will mean a harder time getting employment, applying for insurance, going out of the country, and so on.

Apply for DUI Record Suspension or Get a DUI Pardon

Calvin Barry Law can help you apply for a DUI pardon or a record suspension even though it is not yet 5 years past the date when you paid your DUI fine (but be sure to pay any fines as soon as possible!). The Calvin Barry DUI Lawyer team can gather all the paperwork you need before the application process and work with you throughout the 10-12 months process of cleaning your records.

Need help from Calvin Barry, DUI Lawyer to get a DUI pardon? Calvin Barry Law has been helping people get a DUI pardon for years. Contact us or drop by our office so we can talk about your case as soon as possible.

Definition of Impaired Driving Has Limitations As Shown on an Ontario Ruling

Getting convicted for driving under the influence means that a DUI charge will be linked to your name. This link will be there for years to come until such time that you’re able to get a record suspension or a DUI pardon with the help of a DUI lawyer.

But what constitutes impaired driving?

Is it impaired driving if you simply slept in your parked car while waiting for the effects of alcohol intoxication to go away?

Would you be fine with going to jail for sleeping in your car when you’re drunk because you did not want to drive until you are feeling much better?

Location, Location, Location!

What defines impaired driving or driving under the influence differs widely between provinces and territories. In a 2016 case in Ontario, a drunk man was found sleeping inside his car which was parked outside a housing complex in Burlington. He was charged with DUI.

The Ontario ruling by Justice Alan D. Cooper stated that the man, Ryan Toyota, was not guilty of any criminal offences despite leaving the engine and the exterior lights on because of several factors. One factor is that he meant to stay in a friend’s house but got locked out. Another is that he had to stay inside the car because this occurred in February 2015 in sub-freezing temperatures.

The ruling focused on a section of the Criminal Code which establishes the presumption of care or control of the vehicle – stating that the risk of danger is a fundamental element of care and control.

In the court’s opinion, they believed that Mr. Toyota had no intention of driving his vehicle and that the engine was just left on to keep himself warm. They also believed that Mr. Toyota had no means of getting inside his friend’s home because the homeowner passed out after accidentally locking the door on the way in.

The court said that it was clear that Mr. Toyota intended to spend the night in his friend’s home and made do with the safer course of action when given no other options except staying in his car or driving home.

What Really Happened

The police report did say that they found the defendant inside his vehicle which was parked outside the housing complex in sub-zero temperatures. The officer opened the door and smelled alcohol so he asked Mr. Toyota to step out and found that he was intoxicated. Mr. Toyota was then arrested and brought to the police station to be tested.

Real Justice

Justice Cooper noted in his ruling that the data from the police clearly stated that Mr. Toyota’s car was parked properly and in no danger to anyone at the time the police officer found him. Although there was a realistic risk of the defendant choosing to drive in his intoxicated state, the fact remains that he did not.

The court also believed that although Toyota’s blood alcohol level was lot higher than what defines legally drunk, it is highly unlikely that he would have suddenly change his mind and go driving if the officer didn’t find him. At the end of the day, the details of the circumstances dictated the court’s ruling.

The above is why you need a seasoned DUI Lawyer to help you deal with a DUI charge. Not everyone who is in a vehicle and intoxicated mean to do harm or is a danger to people. Calvin Barry Law specializes in uncovering the truth. He is the Toronto Criminal Lawyer that you need on your side! Contact Calvin Barry today!

What To Do When You Get a DUI Charge for The First Time

Hiring a DUI lawyer is the first thing that anyone accused of driving under the influence or facing a DUI charge should do.

The above is to ensure that a good defense is established early on more so that territorial, provincial, and federal governments are quite strict and ruthless when it comes to prosecuting DUI cases.

Groundwork for Good Defense

Whether or not one is guilty of driving under the influence, the courts follow a procedure wherein the accused will be asked to appear in court. Should the first court appearance is to be without a lawyer, the defendant can file a request for two to three weeks continuance to find and hire a DUI lawyer. In the event that the prosecutor provides a disclosure package containing witness statements and police notes, a charge screening form, and a synopsis of DUI charge, this should be safeguarded and shared with the selected lawyer.

Going for A Guilty Plea

Hiring a DUI lawyer is a must even for those who plan to plead guilty. This is because even with a guilty plea, there are still negotiations to be done that can turn events to be more favourable for the defendant.

Note that pleading guilty will lead to a criminal conviction that will be tied to one’s name for life. It will be there no matter how much fine was paid and no matter how  long a jail time was served. It is one thing to be accused and convicted and a totally different thing to convict one’s self. For one, holding a public office will be next to impossible as well as having a career as a medical professional, a legal professional, part of the law enforcement, and many more. You will have to be fully aware of the consequences of pleading guilty before doing so. Having a DUI lawyer can help you with this.

Defend Against a DUI Charge

Choosing to fight a DUI Charge should begin with a good strategy formulated by a Criminal Lawyer. This requires a detailed initial consultation between the accused and the DUI lawyer to counter check all details which include but are not limited to:

  • What the accused drank or ingested
  • What the police saw and said
  • What the defendant saw and said
  • How were the intoxication tests administered
  • Were there any witnesses
  • Was the protocol followed
  • How the arrest was done

Part of the defense for a DUI charge is for the defendant to behave as a model citizen and not cause trouble during the case’s duration. This means dressing appropriately for court, showing up on time, responding respectfully when addressed, and generally showing a sense of social responsibility. Know that no matter how amazing a DUI lawyer is, things will not end well with a client that comes to court late and obviously intoxicated.

A good DUI lawyer will prepare the client for cross examinations and giving testimonies, possibly going over questions the other party will ask to help the client be more confident and eloquent when speaking in court. All in all, a defendant that can show the court that he’s repentant and shows commitment to be a better person is a dream client to defend for DUI lawyers.

A DUI conviction can mean a stain on your record that can affect what jobs you can take, where you can buy or rent a home, how much insurance you’ll have to pay, and more. You need to ensure that you don’t hurt your chances of getting a DUI pardon as soon as possible and that you have a DUI lawyer that can mitigate your charges. Calvin Barry is a Criminal Lawyer in Toronto that can help with this. Contact Calvin Barry Law today!

3 Year Sentence for Drunk Driver who Killed Stepson

A London, Ontario man has pleaded guilty to impaired driving causing death, following a crash that killed his stepson and left him with serious injuries, and having to be extracted from the vehicle.

Andrew Rutherford, 42 was apparently teaching his son how to drive at the time. Something that is supposed to be a bonding time, and soon turned into the ultimate tragedy. The car itself was not insured at the time of the accident and was in need of many repairs before the accident.

Read the full article at the London Free Press here.

Intoxicated Man Runs Himself Over After Police Pursuit

30 year old Isaac Bonsu of Alexandria Virginia has been charged with DUI as well as marijuana possession after a police pursuit, which resulted in him fleeing his car and getting run over by his own vehicle after forgetting to put it in park.

This was caught on dashcam by the Fairfax county police. Bonsu was unhurt, however, his reputation surely is after the video went viral online.

Read full article and see the video here.

Canadian Ski Cross Racer has DUI Incident in Pyeongchang

David Duncan, a Canadian ski cross racer at the Pyeongchang Winter Olympics has apologized after having been released from prison following a late night drunk ‘joyride’ at the games.

Duncan, his wide and his coach were all detained following the theft of a car and subsequent drunk driving. It should be noted that Duncan was not the driver of the vehicle.

Read more at The Star article here.

Beware of media, say lawyers after televised recording of breath test leads to acquittal – The Lawyer’s Daily

By Terry Davidson

(September 5, 2017, 8:42 AM EDT) — Lawyers say defence counsel and their clients must always be
aware of those watching and listening following the acquittal of a driver who had his failed roadside
breath test and legal consultation recorded by a TV news station.

It was on Aug. 24 that Justice David Rose, in R. v. Gautam 2017 ONCJ 577, acquitted Kunal Gautam
of driving over the legal limit after he found that his constitutional rights were violated at a York
Regional Police spot check after Global News recorded his breath test and on-site phone call with a
lawyer.

According to Rose’s written decision, someone at York Regional Police had given Global News
permission to report on the night’s operation in Richmond Hill as a way of spreading awareness.
Rose said York Regional Police made a mistake in allowing Global unfettered access inside the truck
in which Gautam took his official breath test and phoned duty counsel from a booth in the rear of the
vehicle.

Toronto lawyer Bruce Daley, of Daley, Byers, said a lesson can be learned here.

“From now on, when I get called in the middle of the night, the first thing I’m going to ask my client
is if there is any news media there doing a documentary or something,” said Daley. “I think a key
thing in … [the] ruling is the absolute certainly [Justice Rose] gives that if you’re in a situation that is
completely controlled by police … your Charter interests are definitely engaged because they have
free run of the [situation], which is under control of the police authority.”

According to the decision, it was the night of May 6, 2016, that the RIDE team set up on East Beaver
Creek Road and Mural Street with both police cruisers and the breath-testing truck. A sergeant told
the team a Global News TV crew would be on site to report on the night’s operation.
Just before 11 p.m., Gautam was pulled over, with Global’s cameras rolling. After failing his initial
roadside breath test, Gautam was arrested and led to the RIDE truck for a second test by a breath
technician. After Gautam claimed to not need a lawyer, the arresting officer suggested he call duty
counsel from inside the truck.

A Global cameraman entered the vehicle along with Gautam and the arresting officer. The breath
technician, already inside, was told by the sergeant to wear an audio pack and microphone clip for
the TV crew.

Gautam asked that the TV crew be ordered to leave, but was told by the arresting officer Global had
been given permission to be there. That officer later said in court he found it unusual for a TV crew to
be inside the truck and that it was clearly making Gautam uncomfortable.

Inside the truck, the cameraman filmed as Gautam did two breath tests, first registering 152 in 100
millilitres of blood and 146 milligrams a short time later. Gautam testified in court that when he was
speaking over the phone with duty counsel, the cameraman lifted a curtain on the outside of the
booth and pointed the camera inside.

“[Gautam] testified that he wanted to ask questions to duty counsel but couldn’t because he was
being recorded,” wrote Justice Rose, who found Gautam’s “contact with duty counsel was impeded”
and that he had at one point been “told that the phone booth … was not completely soundproof.”
Justice Rose ruled Gautam’s rights under s. 10(b) of the Charter, the right to private counsel
consultation, had been violated, as were his rights under s. 8 , in that he was subjected to
unreasonable search and seizure when Global was permitted to film his breath test.

“That right to counsel, of all the Charter rights, it is one of the most sanctified rights in the
Constitution because of solicitor-client privilege and your right to get legal advice … when you are
under arrest or [under] detention,” said lawyer Calvin Barry, of Calvin Barry Professional
Corporation. “The other [Charter breach] was unreasonable search and seizure [in that] he had a
reasonable expectation of privacy and not have somebody have a camera in his face and be
recording when he’s trying to get some legal advice and providing the samples.”

In the end, it remained a mystery as to who at York Regional Police ultimately gave Global the green
light to film all aspects of that night’s RIDE operation. “No police witnesses could answer that
question, but their conjecture that it was someone well above the rank of police constable is entirely
reasonable,” stated Justice Rose.

© 2017, The Lawyer’s Daily. All rights reserved.

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