Facing First DUI Charges in Ontario - Best defenses with a Lawyer
Regrettably, there are situations where individuals may mistakenly believe they are able to drive, even when impaired. Driving under the influence can lead to severe consequences for those convicted.
Fortunately, individuals arrested for DUI in Ontario have access to legal representation and in many situations, a lawyer will be able to present a defense.
In this article, DUI Canada Lawyer explains what a DUI is and the best defenses that a lawyer can present for this criminal offence!
What is a DUI and what are the consequences?
Driving Under the Influence (DUI) is a serious offense delineated in section 320.14(1) of the Criminal code, occurring when an individual operates a vehicle while impaired by alcohol, drugs, or a combination thereof.
- Prohibited levels for alcohol: The prohibited blood-alcohol concentration (BAC) is 80 milligrams or more (mg) of alcohol per 100 milliliters (ml) of blood within two hours of driving.
- Prohibited levels for cannabis (THC): There are two prohibited levels for THC within two hours of driving: between 2 nanograms (ng) and 5 ng of THC per ml of blood constitutes a less serious offense, while 5 ng of THC or more per ml of blood constitutes a more severe offense.
- Prohibited levels for alcohol-cannabis combination: Within two hours of driving, the prohibited levels for alcohol and cannabis combined are 50 mg or more of alcohol per 100 ml of blood and 2.5 ng or more of THC per ml of blood.
- Prohibited levels for other drugs: In addition to alcohol and cannabis, the presence of various substances in the system within two hours of driving is strictly prohibited.
It’s important to highlight that the prohibited level for GHB is 5 mg or more per liter of blood.
What are the consequences for DUI in Ontario?
The penalties for DUI in Ontario, vary depending on factors such as the severity of the offense, previous convictions, and the concentration of alcohol or drugs in the individual’s system.
First DUI offence:
For a first DUI offense in Ontario, the penalties can indeed be severe. Upon conviction, individuals may face a minimum fine of $1,000, along with additional victim fine surcharges and court fees. It’s important to note that the fine for DUI related to alcohol increases depending on the level of alcohol concentration in the individual’s system :
- Blood alcohol concentration of 80-119 mg of alcohol per 100 ml: Minimum fine of $1,000
- Blood alcohol concentration of 120-159 mg per 100 ml: Minimum fine of $1,500
- Blood alcohol concentration of 160 mg or more per 100 ml: Minimum fine of $2,000
Additionally, they will receive a criminal record, mandatory license suspension for at least one year, and the possibility of imprisonment for up to 10 years. To address the underlying issue of impaired driving, offenders are often required to participate in education or treatment programs.
Furthermore, the installation of an ignition interlock device in the offender’s vehicle for at least one year may be mandated.
In short, here are the consequences for a first DUI :
- A minimum fine of $1,000 plus surcharges and court fees.
- Criminal record
- Mandatory license suspension for at least one year
- Possibility of imprisonment for up to 10 years
- Mandatory participation in education or treatment programs
- Installation of an ignition interlock device in the vehicle for at least one year
Second DUI offence:
The consequences become more severe for subsequent DUI offenses. A second DUI charge within 10 years of the first conviction can result in a minimum fine of $1,000, mandatory minimum imprisonment of 30 days, and a three-year prohibition on driving.
The penalties escalate if the blood alcohol concentration (BAC) is 160 mg of alcohol per 100 ml or more, leading to a mandatory minimum imprisonment of 120 days. Offenders may also face a longer license suspension, mandatory education or treatment programs, and the installation of an ignition interlock device in their vehicle for at least three years.
In short, here are the consequences for a second DUI :
- Minimum fine of $1,000 plus surcharges and court fees
- Criminal record
- Mandatory minimum imprisonment of 30 days
- Mandatory minimum imprisonment of 120 days if BAC is over 0.16
- 3 year prohibition on driving
- Mandatory education or treatment programs
- Installation of an ignition interlock device in the vehicle for at least 3 years
Third DUI offence :
A third DUI offense within 10 years carries even harsher penalties. In addition to fines, criminal records, and mandatory minimum imprisonment of 120 days, offenders face a lifetime driver’s license suspension (which may be reduced after 10 years with certain criteria).
They are also required to install an ignition interlock device in their vehicle for at least six years, participate in probation with conditions such as alcohol treatment programs and no alcohol consumption, and undergo a compulsory medical assessment to assess their eligibility for driving in Ontario.
In short, here are the consequences for a third DUI :
- Minimum fine of $1,000 plus surcharges and court fees
- Criminal record
- Mandatory minimum imprisonment of 120 days
- Lifetime driver’s license suspension (may be reduced after 10 years)
- Installation of an ignition interlock device in the vehicle for at least 6 years
- Probation with conditions such as alcohol treatment programs and no alcohol consumption
- Compulsory medical assessment for driving eligibility in Ontario
What defenses can be presented for DUI charges?
Upon arrest by law enforcement, individuals are entitled to certain constitutional rights that must be respected. Additionally, specific tests must be conducted to assess blood alcohol levels or drug presence, following established protocols and regulations. If these rights and regulations are not respected during a DUI arrest, it can create opportunities for a legal defense.
A defense, prepared and presented by a skilled DUI lawyer, may lead to a plea of not guilty!
Among the several defenses that a lawyer can present, here are the most common ones:
The police did not inform the arrested individual of their right to counsel!
According to section10(b) of the Canadian Charter of Rights and Freedoms, anyone arrested has the right to a lawyer’s assistance for a fair defense, aiming to prevent coercion during questioning.
Police officers arresting individuals for DUI must quickly inform them of their right to legal assistance and help them contact a lawyer.
This can include facilitating a call to an on-call lawyer or providing access to a list of available lawyers. It’s important to note that officers are prohibited from interrogating the individual until they have had the opportunity to consult with a lawyer.
Unavailable lawyer:
If the chosen lawyer is unavailable, the individual has a right to a reasonable delay to find another. This delay’s length depends on factors like the accusation’s seriousness and the investigation’s urgency.
It’s crucial that the delay matches the circumstances; for instance, in DUI cases, it may be shorter due to the need for prompt alcohol testing. If the initial lawyer isn’t available within the timeframe, the detainee must quickly choose another.
| **Defense:**If an individual arrested for DUI isn’t informed of their right to legal counsel by the police, this oversight can serve as a defense. It’s a violation of their constitutional rights, potentially making evidence or statements obtained without access to counsel inadmissible. As a result, this police error could weaken the prosecution’s case, possibly resulting in the accused being found not guilty of the DUI offense. |
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The police did not promptly inform the reasons for the arrest
Under section 10(a) of the Canadian Charter of Rights and Freedoms, any person who is arrested has the right to be informed immediately of the reasons for their arrest.
Indeed, in the case of DUI, police officers are obligated to communicate the reasons clearly and comprehensibly for the arrest, avoiding the use of technical or legal terminology. This ensures that the individual can fully understand the reasons for their arrest and the implications thereof.
This immediate information provides the arrested individual with the opportunity to understand the potential consequences of the situation and make informed decisions regarding the necessity of consulting with a lawyer.
If the police fail to inform the accused of the reasons for the arrest, it violates their constitutional rights, potentially making evidence or statements obtained inadmissible. Consequently, this violation could lead to the accused being acquitted of the DUI offense.
Alcohol or drug tests were not completed correctly
When an individual is apprehended for driving under the influence, law enforcement officers have the authority to administer a breath alcohol concentration test or any relevant test. However, it’s crucial that these breathalyzer tests are conducted accurately and in accordance with legal procedures, particularly when alcohol is involved.
If the police intend to use the breathalyzer test results as evidence against the driver, they must ensure that the tests are conducted correctly and lawfully. Typically, these tests should be administered within a specified timeframe, usually within three hours of the offense, and by a certified breathalyzer technician.
Here are the possible defenses that can be presented for alcohol and drug tests :
- Malfunctioning of the breathalyzer test and/or the approved screening device
- Mishandling of the breathalyzer test and/or the approved screening device
- Improper calibration of the breathalyzer test and/or the approved screening device
- Inadequate maintenance of the breathalyzer test and/or the approved screening device
- Expiration of the certification of the approved technician
- Qualified technician not receiving the required training for the device used
- Expiration of the certificate of use for the approved screening device
- Breathalyzer tests conducted within an interval of less than 15 minutes
| **Defense :**If the breathalyzer test, or any other test aimed at determining alcohol intoxication or drug presence, was not administered properly according to legal standards, it could provide grounds for the defense.This means that if there are issues with the administration, calibration, timing, or any other aspect of the test that could affect its accuracy and reliability, the defense may argue that the results are invalid and should not be admitted as evidence. In such cases, if the court agrees with the defense’s argument, it may lead to the exclusion of the test results, weakening the prosecution’s case and potentially resulting in the defendant being acquitted of the DUI charge. |
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The case took too long to reach court
Under section 11(b) of the Canadian Charter of Rights and Freedoms, individuals charged with an offense in Canada are guaranteed the right to have their case heard by a judge within a reasonable period of time.
The Supreme Court of Canada’s decision in R. v. Jordan established specific timelines for trials to be heard, requiring them to be completed within 18 months after charges are laid. If the case exceeds this timeframe, a lawyer can file a stay of proceedings for delay. If the judge determines that this right has been violated, the DUI charge would be dismissed.
You have been arrested for impaired driving? DUI Canada Lawyer can help you find a lawyer specialized in criminal law!
If you’ve been arrested by the police for driving under the influence, it’s strongly advised to seek the services of a lawyer specialized in criminal law. An experienced lawyer in this field can provide crucial legal assistance to defend your rights and interests.
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