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Charged with Impaired Driving or Over 80 in Ontario | Beyond Doubt Law

HOME / GUIDES / IMPAIRED DRIVING DEFENCE GUIDE Charged with impaired driving or over 80 Impaired driving prosecutions look mechanical from the outside and they ...

HOME/GUIDES/IMPAIRED DRIVING
DEFENCE GUIDE

Charged with impaired driving or over 80

Impaired driving prosecutions look mechanical from the outside and they are anything but. Between the stop, the roadside test, the arrest, the right to counsel and the instrument at the station, there are a dozen places where the Crown’s case can come apart.

THE BASICS

What happens from the stop to the station

Each step has legal requirements attached to it, and each requirement is something the Crown has to satisfy.

The stop and the roadside screening device

Police can stop vehicles to check sobriety. If there is a basis to demand a roadside sample, a screening device is used, and a fail result gives grounds to arrest. There is no right to counsel before providing a roadside sample, but the demand must be made properly and the device must be functioning.

The arrest and the right to counsel

On arrest you must be told why, and told of the right to a lawyer without delay. Before providing a sample at the station you are entitled to actually speak to one, privately and with a real opportunity to do so. Failures here are among the most common reasons breath results are excluded from evidence.

The instrument at the station

Two samples are ordinarily taken on an approved instrument by a qualified technician, within statutory time limits and after an observation period. The maintenance records, the calibration checks and the technician’s compliance with procedure are all disclosable and all reviewable.

The licence consequences begin immediately

An administrative suspension follows the charge itself, entirely separately from anything a criminal court might later order. People routinely confuse the two, and understanding the difference matters for planning around work and family.

IN PRACTICE

Where these cases are commonly challenged

None of this is exotic. It is what the disclosure is read for.

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Whether there was any lawful basis for the detention that led to the demand.
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Whether the right to counsel was properly given, and whether a real opportunity to exercise it was provided before the samples were taken.
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Whether the approved instrument was properly maintained and calibrated, and whether the required procedures were followed.
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Whether mouth alcohol, recent consumption or an unexplained variance between the two readings undermines the result.
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On an impaired count, whether there is genuine proof of impairment rather than a list of stock observations.
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Whether the matter has taken so long to reach trial that a delay application is available.
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Whether the file supports resolution to a provincial offence such as careless driving, which carries no criminal record.
QUESTIONS WE ARE ASKED

Frequently asked questions

Is over 80 different from impaired driving?
Yes. Over 80 is about a blood alcohol reading. Impaired driving is about whether your ability to drive was actually affected. They are proved in completely different ways and often charged together.
Can I refuse the breath test?
Refusal is a separate criminal offence carrying the same exposure, so it is not a way out. Whether the demand itself was lawful is a different and often better question.
Will I lose my licence immediately?
An administrative suspension attaches on the charge. A criminal driving prohibition is separate and only follows a conviction.
Can I still travel to the United States?
An impaired driving conviction can make you inadmissible. It is one of the strongest reasons to avoid a criminal record on these charges if there is a way to do so.
What is careless driving and why does it matter?
It is a provincial offence under the Highway Traffic Act with no criminal record attached. Where the evidence supports it, resolving a criminal charge that way avoids the record, the interlock and the border problem.
SPEAK WITH COUNSEL

Tell me what you have been charged with.

The first consultation is free and confidential. You will get a direct assessment of the charge, the process ahead, and what it will cost. Flat fees, payment plans and Legal Aid certificates are all accepted.

647.721.5150REQUEST A CONSULTATION
Available evenings and weekends. Reachable at any hour for an arrest in progress.
SPEAK WITH COUNSEL

Tell me what you have been charged with.

The first consultation is free and confidential. You will get a direct assessment of the charge, the process ahead, and what it will cost.

Request a Free Confidential Consultation

Speak directly with Kashif Alam. Your information remains strictly confidential under solicitor-client privilege.