The Canadian Charter of Rights and Freedoms grants certain rights to citizens and imposes certain duties on law enforcement and Crown officials. In deciding whether to defend a drinking and driving offence you should consider the following:

There could be a violation of your s.7 and s.8 Charter rights resulting in an exclusion of your breath readings if an officer did not have reasonable and probable grounds to make a demand for a breath test. In forming these grounds the officer must consider all relevant objective/subjective evidence available to him, including the evidence that negates the formation of these grounds.

Section 10(a) of the Charter requires that a person be informed, upon arrest or detention, of the reasons for the arrest or detention. If you were not so advised, there may be a violation of your s.10(a) Charter rights.

Section 10(b) of the Charter provides that an arrestee has the right to retain and instruct counsel without delay and to be informed of that right. If, after you were arrested, and before you provided your breath samples, you were not given your rights to counsel, advised of the choices available to you, or given reasonable opportunity to: contact counsel; consult with counsel in private, or, if your efforts to contact and consult with counsel were interfered with in any way, a judge may find a violation of your s.10(b) Charter rights.

The Canadian Criminal Code requires that a demand for a screening device or breath tests be made "forthwith" as soon as an officer forms a reasonable suspicion that a person operating a motor vehicle has alcohol in his or her body and the subsequent tests at the station must be conducted "as soon as practicable." If there are any unexplained delays in making a demand or administering a screening device or breath tests, a Court may exclude evidence pursuant to s.24(1) or s.24(2) of the Charter, and ultimately a charge against you may be dismissed.




		These are only a few examples of issues which may be raised in defending a drinking driving charge. If you have been charged, in order to make an informed decision on whether or not to defend the charge, you are welcome to contact my office to arrange a consultation, which is FREE of charge.
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If you feel that your readings were high, relative to what you had to drink, and the time interval between your last drink and the time you were stopped, we can challenge these results with what we call "evidence to the contrary." This is achieved by calling a toxicologist to give evidence at your trial or by filing a toxicology report. Either way, a toxicologist will calculate your readings based on: your height and weight; the type and amount of alcohol you consumed; the percentage of alcoholic content; the times you consumed alcohol; the time you were stopped and the time of your first and second breath tests. If we can show the Court, by way of evidence to the contrary, that your readings could have been below the legal limit, your breath readings will be excluded, and an over 80 charge will be dismissed.

If you have been charged with failure or refusal to provide a sample you may defend the charge based on "reasonable excuse." For example, if you were not given your rights to counsel, or not given a reasonable opportunity to exercise those rights, you are entitled to refuse to provide a breath sample.

Finally, if you have been charged with impaired care and control of a motor vehicle you can defend the charge if you can show the Court that you entered the vehicle without the intention of putting the vehicle in motion. If your evidence is that you had no intention to drive your vehicle, after consuming alcohol, or that you were not engaged in any use of the vehicle, or its fittings, which would inadvertently result in putting the vehicle in motion, or, that the vehicle was not in a position that would create a danger to the public, you may have a charge of impaired care and control of a motor vehicle dismissed.