Drinking and Driving
Being charged with a drinking and driving related offence can have an immediate and devastating impact on your life.
This is why it is important to retain a lawyer who has a complete and comprehensive understanding of the technical defences that are available to you, including the workings of the intoxilyzer.
Types of drinking and driving charges
- Over 80
- Impaired Driving/Care or Control
- Refuse Breath Sample
- Identity-Sometimes the Crown is unable to prove who was driving
- Reasonable and Probable Grounds- The Crown must establish a proper foundation for the making of a breath demand
- Right's to Counsel- Everyone is entitled to speak to a lawyer before providing breath samples
- Technical Issues- The Crown needs to present its evidence in full compliance of all technical requirements in the Criminal Code
|Intoxilyzer 5000 Certification
|Avtar Bhangal has been certified by Industrial Training & Design Ltd. in the operation of the Intoxilyzer 5000c breath test device. Their knowledge of this equipment is of significant assistance when defending your drinking and driving charge.
Notable Victories on Issues Such As
- Charter Rights
- Unlawful Stop
- Counsel at Police Station of Scene
- Speedy Trial
- Video Tape Review (Impairment)
- Samples being taken "as soon as practicable"
- Mouth Alcohol Impact on ASD
- Evidence to Contrary
- Language Issues
- Post Driving Consumption of Alcohol
- Proper Calibrations of Roadside Device And Intoxilyzer 5000c
- Improper Procedures
- Proper Demand
Recent Victories *
R. vs. A.R
Case Our client was charged with driving with over the legal limit of alcohol. He was following his friend who he was concerned was drunk. The friend got into a single motor vehicle accident. The police found him at the scene of the accident. He admitted to having driven a few minutes ago. His alcohol level was 114 mgs of alcohol in 100 mls of blood on both blows
Result Our client was a foreign student from India. He had studies here in Canada. Any type of criminal record would likely impact his ability to stay here. We presented the Crown with positive input about our client and convinced the Crown that the low readings could be challenged in Court. The Crown agreed to withdraw the criminal charges. Our client entered to a plea of guilt to the charge of CARELESS DRIVING. He avoided a criminal conviction and a driving prohibition
R. vs. G.F
Case Our client was charged for Impaired Driving and Refusing a Breath Sample. The Crown did not give us the breathroom video tape disclosure for 7 months. I patiently waited for those tapes and then set a trial date. We received a trial date after 8 months; resulting in a total 15 month delay.
Result I brought section 11(b) Charter argument. I was prepared to argue that the case was delayed longer than what is permitted. The Crown agreed with my application and requested the Court to STAY the charges. My client got a clean record and no license suspension.
R vs. M.S.M
Case Our client was charged with refusing to blow into a roadside screening device. Our client insisted that he did try to blow. There was no medical reason why he couldn't blow.
trial We cross-examined the police officer with regards to his knowledge of the device he used. It was shown that the officer didn't really know much about the device, other than the basics.
Result the Judge was not satisfied that the officer was operating the device properly and that he was getting an error message due to our client's actions. The Judge accepted our clients evidence that he was genuinely trying to blow into the approved screening device. Our client won his case.
R. vs. A.D.
Case Our client was charged with refusing to provide a proper breath sample into a roadside screening device. Our client told the officer that he "wasn't going to blow". Our client was afraid to blow into the device, due to concerns that he would blow over. This particular client had a prior record for a similar offence. We knew that the evidence would not be good at trial. We advised our client that we would have to try to win the case without his testimony.
Trial The officer wasn't able to explain to the court what his basis was for making the demand. He wasn't able to articulate exactly what the error message was that was being displayed on the approved screening device.
Result The Judge could not be satisfied that the error message on the device was the proper error message which would signify that our client wasn't blowing properly. We created a doubt that the error message may have meant the device was malfunctioning. This was all done without our client having to testify.
R. vs. R.R.
Case Our client was charged with refusing to blow into an Intoxilyzer 5000C. Our clients refusal was video recorded by the police (usually standard procedure). Our client said that he wanted to speak to another lawyer other than the duty counsel that he had already spoken to. The officer kept asking him what the name of the lawyer was. Our client was saying that he needs to talk to his brother to get a name of a lawyer.
Trial we argued that our client's right to speak to a lawyer of his choice was violated. It was further argued that since the police controlled our client's access to a telephone, they had a higher duty to ensure that reasonable efforts were made to get the name and number of the lawyer our client wanted to speak to.
Result After watching the video tape in open court, the Crown was so shocked by the officer's conduct that she asked the Judge to dismiss the charges.
R. vs. K.S.
Case Our client was highly intoxicated in the driver's seat of a motor vehicle parked in a parking lot of a nightclub. Our client's alcohol level was approximately 240 mgs of alcohol in 100 mls of blood (that is three times the legal limit). Even though our client wasn't driving he was charged with having "care and control" of a motor vehicle while his alcohol level was above the legal limit. The Crown would have tried to prove the "care and control" due to the fact our client was seated in drivers seat and the engine was running.
TrialThe witnesses from the nightclub who saw our client sitting in his vehicle didn't appear at the trial date. Without these two witnesses, the Crown could not prove that our client was ever sitting in that car. The police arrived after the witnesses had turned off the engine and helped our client out of the vehicle.
ResultThe Crown withdrew the charges.
R. vs. V.P.
Case Our client was involved in a car accident where the driver of the other motor vehicle was injured. Our clients blood alcohol level was over double the legal limit. Our client showed significant signs of being impaired.
At Trial We took the strategy to show that the signs of impairment were our clients injuries in the accident. There was no evidence of bad driving prior to the accident. The accident could have been explained away due to the icy road conditions. Any unsteadiness or red blood shot eyes could also be explained as being due to the injuries and not our client being drunk. The alcohol level was determined by hospital medical testing of the blood. The blood alcohol level was slightly over the legal limit.
Result The court was not satisfied that our client's blood alcohol level was above the legal limit, due to the fact. Hospital testing of blood alcohol levels is not as rigid as The Center of Forensic Sciences testing procedure. Also, the hospital staff was unable to say what the variance of error range was for the testing procedure. The Judge felt that there was not sufficient evidence to show that our client's ability to drive a motor vehicle was impaired by alcohol.
R. vs. G.C.
Case Our client was a taxi driver and was driving his taxi van home after a night of heavy drinking. The witness had followed our client's van home and observed some very poor driving. He described that at one point there was another taxi van that was talking to our client through an open window. Our client was arrested from inside his own home. Our client was alleged as having confessed that he was the driver of the van in the garage.
At trial The witness gave contradictory evidence as to where our client and his taxi van, and where the other taxi van was parked. Due to the limited understanding of English, it was shown that our client's confession was not a true confession of being the driver of the van, but rather was a general comment made by our client that "he drives van"; not that "he drove the van".
Result Reasonable doubt was created with regards to the identity of the driver and that the confession was misconstrued. Our client was acquitted of all charges.
Dräger DrugTest 5000 Device Approved
Prime Minister Trudeau recently announced that the use of recreational marijuana will officially become legal on October 17 2018.
With the legalization of marijuana soon to come, without a doubt we will begin to see an increase of individuals in the community driving under the influence of drugs. According to CBC, drivers impaired by pot may have slower reaction times and can swerve and tailgate more often, creating a greater risk for accidents. In addition in developed countries such as Canada drug-impaired driving is on the rise, specifically among young teen drivers.
Canada like many countries around the world already has a roadside screening device which can detect the presence of alcohol, so you may be asking yourself how will they be able to determine if someone is driving high?
The first way which police have been using to this date to determine drug impairment while operating a motor vehicle is through a standard field sobriety test. However, the Dräger DrugTest 5000 will now be another option for police to use when determining the sobriety of a driver they reasonably suspect is impaired.
The Dräger DrugTest 5000 is a device that will test an individuals oral fluid (saliva) for THC (the main psychoactive chemical component found in cannabis). A scrape of saliva will be taken off your tongue and placed into the machine, at which point the machine will either give a pass or fail reading.
How much marijuana are you legally allowed to drive with in your system?
The Globe and Mail states that “if you have five nanogram or more THC in a millilitre of blood you can be charged criminally. Just like driving with a blood alcohol concentration (BAC) over 0.08.” Driving under the influence of marijuana is a hybrid offence, meaning depending on the seriousness, you could face jail time and a hefty fine
With two nanograms, but less than 5, you will face a summary conviction and have to pay up to a $1,000 fine.
Combining alcohol and marijuna will have its own limit as well, as this combination is a very dangerous mix for driving - hence, a BAC of 0.05 combined with a THC level over 2.5 nanograms will be a hybrid offence.
Bill C-46 contains the proposed changes to impaired driving laws which will set out the limits for driving while under the influence of pot.
The next big question is how accurate the test is, and as of lately, the Dräger DrugTest 5000 has been proving to give some false positives, and some false negatives, the main cause being the cold whether in Canada. However, the government still feels the ratio of false results to the number of accurate results justifies the implementation of the new device.
With its new implementation, as charges begin to be laid using the machines results, there will not doubt be constitutional challenges and issues raised in court on the accuracy of the results.