12/10/2016 0 Comments
How to Protect Yourself If You Are Accused of Drinking and Driving
Driving impaired is a common offence in Canada. Approximately 15,000 people are charged with impaired driving in Alberta each year. If you are stopped by the police, you can protect yourself if you are accused of drinking and driving.
1. Pull Over As Requested and Analyze the Situation
It is important to stop when signaled to do so by the police. Pretending that you did not see, hear, or understand the police as well as trying escape the scene is a mistake as it can lead to further charges. Ask yourself why the police are pulling you over. Are the vehicles in front of you being pulled over under a Checkstop program? Or, were you swerving while driving, leading the officer to question your driving ability? Your analysis should also confirm that everyone in the vehicle is safe (e.g., wearing seatbelts, not distracting the driver) and that no incriminating behaviour is occurring (e.g., no open alcohol or drugs are accessible in the vehicle, including prescription drugs that impair driving).
2. Know What Impaired Driving Entails
Under the Criminal Code of Canada, a fully licensed and insured driver can only legally operate a motor vehicle if his or her mental and motor skills are not impaired while driving and blood alcohol content (BAC) is within 80 mg per 100 ml of blood or less. This means that even if you have a BAC of only 0.04% (half the legal limit), you could be arrested, charged and convicted for driving impaired if you were driving in an impaired state from alcohol. Some people have a low alcohol tolerance and could be impaired within the legal limit.
The Criminal Code charges for impaired driving are as follows, though only one conviction with one punishment will result:
Operating a motor vehicle with a BAC in excess of 0.08%;
- Impaired operation of a motor vehicle;
- Impaired operation of a motor vehicle causing bodily harm;
- Impaired operation of a motor vehicle causing death; or
- Refusal to provide a breath or blood sample.
If you are charged with both impaired driving and refusing a breath sample, however, there is a possibility that you will receive separate penalties for both offences.
In Alberta, the Traffic Safety Act imposes additional stricter penalties than the Criminal Code. The BAC limit is 0.05% for fully licenced drivers and there is a zero tolerance for novice drivers. If you are over the legal BAC limit or you refuse to provide a breath sample, your licence can be suspended for 24 hours or longer for a first offence and longer for subsequent offences. Tougher charges than the Criminal Code also apply if you are caught driving with a BAC over 0.08%.
If you are not driving when the police approach you (e.g., you are sitting in the driver’s seat with the vehicle off), you can still be arrested for impaired driving for being in “care and control” of a vehicle. The police can arrest you if they have suspicion that you have committed any of the prohibited acts in the three hours previous to questioning.
The police can also demand that you submit to an evaluation by an evaluation officer to determine if you are impaired if the officer has reasonable grounds to believe that you have taken drugs or a combination of alcohol and drugs within the past three hours. If the evaluating officer has reasonable grounds that you are impaired, he or she can make a demand for blood or urine samples.
3. Speak to the Officer in a Respectful, Calm and Helpful Manner but Do Not Incriminate Yourself
It is important to show respect to the police officer who has stopped you, including by turning off the radio, making eye contact, and using polite, respectful language. Take the officer seriously and do not raise your voice or argue. Be aware that you are required to provide basic information (e.g., your drivers licence, registration and proof of insurance) and you can decline from answering drinking related questions. An officer does not have to read you your rights before asking incriminating questions like, “Have you been drinking?” “How much?” “Do you feel the effects of the alcohol?” The reason for this is that your rights are not read to until you are “in custody,” which you are not until you are arrested. Make sure that you do not make any admissions or volunteer information.
4. Circle Check your Vehicle for Obvious Defects and Abnormalities that would Incite Probable Cause
In order to convict you of impaired driving the Crown Prosecution will have to prove not how much you were impaired but rather that you had been drinking and that the alcohol impaired your ability to drive. If you drove into the curb because of mechanical failure of the vehicle (including any damage to your vehicle you did not notice when you got in) or you swerved for a reason other than impaired driving (e.g., trying to avoid hitting an animal), then it is important to ensure that the police are aware of these facts.
5. Be Aware of Observations That Support a Reasonable Suspicion of Impaired Driving
Typical observations that support a reasonable suspicion of impaired driving are:
- An erratic driving pattern such as weaving between lanes or hitting the curb,
- An odour of an alcohol on your breath,
- Slurred speech, stumbling or incoherent comments,
- Red eyes or glossy eyes,
- Difficulty standing or other coordination difficulties,
- Empty alcohol containers found in the vehicle,
- Admitting to having a drink, and
- Witnesses’ observations about how much you had to drink.
6. Know That Refusal to Cooperate Can Lead to Charges
Keep in mind that while no one can make you take a breathalyzer, by virtue of having a driver’s licence issued to you, you have given your implied consent to submit a test if requested to by the police. You could be charged for failing to provide a breathalyzer and the penalty is the same as an impaired driving charge. Similarly, no one can force you to perform sobriety tests, but if you refuse, then police will have less information to form a judgment and the police may assume you are impaired.
7. If You Are Charged, Hire an Experienced DUI lawyer in Calgary to Defend Your Case
Impaired driving in Alberta is subject to criminal charges and administrative penalties. In addition to a licence suspension of at least one year for a first offence if you are convicted, you could face fines and possible jail terms. A harsher punishment may result if you injured another person or if you damaged property while you were impaired. With so much at stake, it is critical to hire an experienced impaired driving lawyer in Calgary to defend you fiercely in court. At Dennis Kolba Criminal Law Office, we are DUI lawyers serving Calgary, Okotoks and surrounding areas. Contact us today.