There are several offences which fall broadly under the drinking/impaired driving umbrella:

Impaired Driving

Impaired driving charges are laid where police believe that a person was operating a conveyance while their ability to do so was impaired, even slightly, by drugs or alcohol. Impairment can be established through a layman’s observations (i.e. without an expert). Examples of indicators consistent with impairment include lack of balance (stumbling, staggering, etc.), slurring of words, slow movements/responses, and poor driving (e.g. swerving, inconsistent speeds, etc.). Proving impairment also does not require scientific evidence that a drug/alcohol was in your body through the testing of a bodily sample (e.g. breath, blood, or urine).

Combatting an impaired driving charge will often be done through skilled cross-examination of the Crown witnesses designed to undermine any evidence of impairment, combined with a careful review of video footage from the time of arrest to highlight evidence of normal functioning.

It may also be possible in some cases to cast doubt on the cause of any impairment. For a finding of guilt, the impairment must be caused by drugs or alcohol. In some situations (for example, where there’s a serious motor vehicle accident), the evidence may also be consistent with a medical explanation for any signs of impairment that were observed.

80 and Over/Over 80

This an offence that is predicated entirely on the readings that come out of the breath testing instrument. While it is often laid at the same time as an impaired charge, it can also be laid in circumstances where there is no evidence at all that the person was impaired. The defences to this charge are often technical and complex. They will often involve constitutional applications alleging breaches of charter rights or challenges to the proper functioning of the scientific instrument.

Refuse/Fail to Comply with Demand

It is unlawful for a person who is subject to a lawful demand to provide a breath or blood sample to intentionally refuse or fail to do so absent a reasonable excuse. This offence can be made out through an outright refusal to participate however the Crown does not require anything this overt to prove their case. If a judge is satisfied that the ‘attempts’ made were feigned or disingenuous this can also ground a conviction.

Defences to this charge will often involve a challenge to the lawful authority of the police to make the demand in the first place. Even where this is established, however, this does not end the matter. For criminal liability to be established the failure to comply must be intentional, therefore, if there are factors that may negate this (e.g. a language barrier that resulted in a lack of understanding, a malfunctioning of the breath testing equipment, etc.) then an acquittal must follow. Further, even where the failure to comply is intentional there may still be a reasonable excuse that can be established (e.g. medical issues).

Drinking and driving offences are simultaneously amongst the most common offences prosecuted while at the same time being amongst the most complex and technical. If you’ve been charged with a drinking and driving offence, an experienced Criminal Defence Lawyer who stays up to date with this rapidly changing area of law is your best chance at achieving a positive outcome in your case.

The lawyers at SWH Law have a wealth of experience in defending drinking and driving related offences. To book your free consultation with a lawyer at SWH Law please click here.