Notable recent results:

  • Impaired & Over 80; Statutorily aggravating readings (Over 150) - Criminal Charges Withdrawn
     
  • Impaired by drug - passed out in front seat of vehicle from drug overdose - transported to hospital - Criminal Charges Withdrawn
     
  • Ride Checkpoint - Intoxicated by drug - Not Guilty
     
  • Came home after night of drinking - passed out in vehicle in driveway in front of house  - Not Guilty
     
  • Swerving and speeding - followed by police officer from bar - charged with Impaired & Over 80 - kicked officer at the station (assault peace officer)  - Criminal Charges Withdrawn
     

*Results may vary. Consult a lawyer if you have questions as each case is different and is adjudicated on its merits.

Despite the well-known and well-intentioned MADD campaigns in the late 90s and early 2000s, it is important to note that drinking and driving is not against the law. What is against the law is driving while intoxicated - be it from alcohol or drug, where the extent of impairment can range from "slight to great" (R. v. Stellato [1994] 2 SCR 478). At PSV LAW we know the how devastating the consequences of a DUI conviction can be, ranging from monetary penalties to social stigma, license suspensions, a criminal record, potential interlock ignition devices, and more. Moreover, the standard of review applied by the MTO for an impaired "conviction" by the courts, and the subsequent MTO license suspension period can often differ from those applied by the judiciary. For any impaired charge it is crucial to retain the proper, experienced lawyer to defend your rights. Paul V., Barrister and Solicitor, has been defending innocents for years from overzealous police practices in attempting to secure convictions, and is intimately familiar with navigating the legal framework towards securing an acquittal. 


Impaired Driving, Over 80, Refuse Breath Sample

In addition to the essential elements of time and date, jurisdiction, and identity of the accused, the essential elements for Impaired Driving, Over 80, or Refuse Breath Sample are required to be proven by the Crown in order for a conviction to be registered. The onus is on the Crown to prove these essential elements of the offence beyond a reasonable doubt.

Note, the items in bold are essential elements:

Operating while impaired

  1. Officer had reasonable suspicion that there was alcohol/drugs in body and so detained the accused
  2. The accused was operating the motor vehicle or in care and control of the vehicle
  3. There was any amount of impairment of the accused ability to drive at the time
  4. The impairment was by alcohol or drug at the time
  5. The accused voluntarily consumed the alcohol

Operating while BAC over 80

  1. The accused was operating the motor vehicle or in care and control of the vehicle
  2. Officer had reasonable suspicion that there was alcohol/drugs in body and so detained the accused
  3. The accused's BAC was over 80 at the time
    1. Each sample taken as soon as practicable after offence was committed
    2. First sample taken not later than two hours
    3. Interval of at least 15 minutes between samples
    4. Each sample received from suspect directly into instrument
    5. The instrument was an approved instrument
    6. The instrument was operated by a qualified technician
    7. The technician made an analysis of each sample

Refusal

A charge for a refusal to provide breath sample is very serious as it is seen by the courts as having provided a sample that registered over 0.08. In addition to the essential elements of time, jurisdiction, and identity, the crown should prove:

  1. A proper demand was given and understood;
  2. There was a refusal or failure to provide a proper sample; (actus reus)
  3. The accused intended not to provide a proper sample; (mens rea) and
  4. There was no reasonable excuse for refusing.

Administrative Penalties (0.05-0.08)

Despite the above offences, there are also administrative penalties also associated with blowing within the "warn" range at the roadside test (between 0.05 and 0.08). These are mandatory and cannot be appealed.

First Time
•    3-day licence suspension
•    $150 Administrative Monetary Penalty

Second Time (within 5 years)
•    7-day licence suspension
•    Mandatory alcohol education program
•    $150 Administrative Monetary Penalty

Third Time (within 5 years)
•    30-day licence suspension
•    Mandatory alcohol treatment program
•    Six-month ignition interlock licence condition
•    $150 Administrative Monetary Penalty

Subsequent infractions (within 5 years)
•    30-day licence suspension
•    Mandatory alcohol treatment program
•    Six-month ignition interlock licence condition
•    Mandatory medical evaluation
•    $150 Administrative Monetary Penalty

Impaired Driving Convictions Penalties

First time

  • Mandatory alcohol education or treatment program
  • 1 year minimum requirement to drive a car equipped with an ignition interlock device
  • No minimum jail sentence
  • $1,000 fine
  • Licence suspended for 1 year*

Second time

  • Mandatory alcohol education or treatment program
  • 3 year minimum requirement to drive a car equipped with an ignition interlock device
  • 30-day minimum jail sentence
  • Fine amount at the discretion of the judge
  • Licence suspended for 3 years

Third and subsequent times

  • Mandatory alcohol education or treatment program
  • Lifetime minimum requirement to drive a car equipped with an ignition interlock device
  • 120-day minimum jail sentence
  • Fine amount at the discretion of the judge
  • Lifetime licence suspension (can be reduced to 10 years if certain conditions are met)

"But I was only sleeping in my car after I had too much to drink!"

There has been some debate about whether sleeping in the driver's seat with no intention to drive should be caught under the impair driving offences. However, much case law leans towards the conclusion that where a person is found in the driver's seat, and no evidence is lead of a specific plan to support a changed intent to drive, the presumption will be allowed. So for example, a person who sits in the drivers seat of a vehicle to sleep off the effects of alcohol will be in care and control.

Thus, to overcome this finding some evidence is necessary. The distinction can be made where the accused is merely a custodial of the vehicle and there is no risk of the car being set in motion.

Courts have found persons sleeping in their vehicle will not amount to care and control in the following circumstances:

  • accused had not place to stay and so slept in vehicle; vehicle was off 
  • the vehicle was turned on to keep accused warm 
  • car off and keys in ignition

Courts have found persons sleep in their vehicle were in care and control in the following circumstances:

  • sleeping in front seat with vehicle off; keys were accessible
  • car running but intended to turn it off/no intention to drive

In certain circumstances a person can be in care and control of a vehicle without being found inside the vehicle.

An accused found near the car while in possession of the vehicle's keys can be sufficient. Where the accused is directing tow truck, it may also be care and control.

Impound Yard Locations

Upon arrest by the police, your vehicle will be towed to one of the following locations. You must make your own way to the lot location in order to pick up your car. There is also often a significant financial cost associated with retrieving your vehicle that is charged by impound lots. Below is a list of the generally used Police Impound Yards throughout Ontario, along with the direct contact information for each location.

Amherstburg Police Tow and Impound Yard
County Towing Service 251 Simcoe St. Amherstburg, ON N9V 1M5‎ (519) 736-9220

Aylmer Police Tow and Impound Yard
Northside Garage 410 John St N Aylmer, ON Tel: (519) 773-2077

Barrie Police Tow and Impound Yard
Graves Towing 85 Rawson Ave Barrie, ON Tel: (705) 728-3211

Belleville Police Tow and Impound Yard
Academy Towing 367 Station St Belleville, ON Tel: (613) 969-0003

Brantford Police Tow and Impound Yard
Ken’s Towing 67 Henry Street Brantford, ON Tel: (519) 756-5642

Brockville Police Tow and Impound Yard
Brockville Towing Service and Central Ave. Towing Service 380 Central Ave W Brockville, ON Tel: (613) 498-120

Toronto Police Tow and Impound Yard – District 1
JP Towing 11 Glen Scarlett Road Toronto, M6N 1P5 Tel: (416) 203-9300

Toronto Police Tow and Impound Yard – District 2
Bill and Son Towing 15 Atomic Avenue Toronto, M8Z 5K8 Tel: (416) 622-2222

Toronto Police Service Tow and Impound Yard – District 3
Abrams Towing 124 LePage Court Toronto, M3J 1Z9 Tel: (416) 398-2500

Toronto Police Service Tow and Impound Yard – District 4
Williams Towing 2671 Markham Road Toronto, M1X 1M4 Tel: (416) 299-8383