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Frequently Asked DWI Questions

  1. 1
    How to Beat a DUI or Impaired Driving Charge

    If a breath test shows that your blood alcohol level was over 80mg per 100mL of blood (or 0.08 percent), you can be arrested and face charges of impaired driving in Canada. Many people think that if they blew over 80, the Crown can automatically prove their charges, and there is no hope to avoid a conviction. Unfortunately, this leads many people to simply plead guilty to the charges without first speaking to a defence lawyer, which means they often accept penalties than are much harsher than necessary. The truth is that there are ways to fight against a DUI conviction and to minimize the impact on your life. Always discuss a DUI arrest with a defence lawyer before you make any decisions in your case. 

    No matter what your breath test results may be, police officers in Canada still must adhere to the law and cannot violate your Charter rights. From the time an officer pulls you over to the time you are released from jail, there are many opportunities for officers to go against required procedures and violate your rights. Any violations can be used as a defence to eliminate key evidence against you in your case. 

    An experienced defence lawyer will evaluate the actions taken by police before and during your arrest and identify any mistakes or violations by officers. Errors can allow your lawyer to argue that your breath test results and other evidence should not be allowed in court. While such mistakes might seem like technicalities, these technicalities can mean the difference between your charges being dropped and having a criminal record. 

    Another way you might be able to avoid an impaired driving conviction is for your lawyer to examine the possibility of a curative discharge. This option can avoid a conviction and, instead, have you complete a period of probation and seek curative treatment. Once this period is completed, your case can be dropped.

    Your lawyer can help demonstrate that you are in need of curative treatment by presenting medical records and proof of your participation in treatment since your arrest. Your defence lawyer will also need to convince the court that a discharge of your offence is not against the public interest. While you will still be subject to the driving suspension, and you will need to abide by all the terms of your treatment and probation, curative discharge can benefit you by avoiding an impaired driving conviction on your criminal record. 

  2. 2
    How does the New Impaired Driving Law in Canada Different from Before?

    The laws of Canada are always changing and being amended – and criminal laws are no different. Legislators are always examining how to alter criminal offences and penalties to best protect Canadian citizens. On December 18, 2018, the standing laws regarding impaired driving were repealed, and new laws took effect

    In the months since, many people have opposed the new laws, questioning whether it is unconstitutional. In any event, the law currently stands, and everyone in Canada and throughout the country should be aware of the new law while it is in effect. The following is a brief overview of some changes made, and if you want to discuss a specific situation, speak with a Canada DUI Lawyer directly.

    In the past, in order to demand that a driver submits to a breath test, police officers had to have “reasonable suspicion” that the person was driving with alcohol in their system. The new law removes the reasonable suspicion requirement and allows officers to demand breath tests of any driver at any time. Police can seek breath samples at random, at roadside checks, or even at every traffic stop if they wish to do so. This has many people questioning whether the random testing violates their Charter rights. 

    The prior law criminalized driving “Over 80,” which refers to the legal limit for blood alcohol concentration (BAC) for drivers. The language of the law has been changed to “80 or Over,” which means a BAC of 80 can now result in charges. The law also added an important new provision of “within Two Hours of Operation.”

    This new two-hour window is a point of controversy because, under the law, a police officer could test your breath for two hours following the suspected drunk driving. In one case, a woman stated she had one drink and then drove to a house, where she consumed additional beers. The police showed up at the house to request a breath test because they claimed they received a report about her driving. Despite her BAC being higher after she consumed the beers – long after she stopped driving – the police arrested her for testing 80 and Over. 

    This is only one example of how the new law is giving police the authority to demand breath tests – even up to two hours after you stopped driving. Refusing a test can also result in serious criminal charges, so it is important to comply when possible and then contact an aggressive DUI defence lawyer. 

  3. 3
    Do I have a defence for a DUI?

    DUI litigation is incredibly complex, to the point that the lawyers who do it tend to focus on nothing else.  It is completely, totally, 100% impossible to know if you have a defence by reading a webpage. It’s simply not going to happen.  This area of law is so complex, you won’t even know what questions to ask, even if you are already a practicing lawyer or law student.  DUI litigation is the criminal law version of brain surgery. The only way you can find out if you have a defence is by calling a DUI lawyer.

  4. 4
    Am I going to lose my license from my DUI charge?

    If you’re convicted of a DUI charge in Canada, it’s inevitable that you will lose your license at least temporarily.

    In fact, that’s just one of several serious consequences that you will face.

    Recent changes to both drug- and alcohol-impaired driving laws make Canada amongst the toughest in the world on driving under the influence of alcohol or drugs (DUI).

    Other possible ramifications of a DUI conviction include:

    • Denial of entry into the United States or elsewhere 
    • A threat to your immigration status (if you’re not a Canadian citizen)
    • Loss of employment
    • Denial of certain types of jobs in the future
    • Jail time

  5. 5
    For how long will I lose my license from a DUI?

    How long you will lose your license for a DUI conviction depends on whether it is your first offence or not.

    If it is your first offence, your driver’s licensed will be revoked for a period of at least one year. During this time, you will not be able to drive, so this could seriously affect your employment.

    The period of time you will be banned from driving increases for multiple offenders. 

    Usually, for the second offence, your license will be revoked for at least two years. For a third offence, your license will be revoked for at least three years.

  6. 6
    How to avoid losing your license for a DUI charge

    There is only one way to avoid losing your license from a DUI charge in Canada. That is to hire an experienced DUI lawyer and win your case or get it dismissed!

    If you lose the case, you must wave goodbye to your license for at least 12 months.

    The good news is that even in the most hopeless case, there is always a chance of case dismissal or acquittal.

    An experienced DUI lawyer will closely examine all the evidence against you. They will look for errors, inconsistencies or gaps in the prosecution case.

    For the prosecution to secure a conviction they must have a watertight case against you. 

    Canadian Dui law states that they must prove that your ability to operate a motor vehicle was impaired by alcohol or a drug to some extent, and they need to prove this beyond a reasonable doubt.

    This is quite a high burden of proof. The conduct of the arresting officer(s) will be assessed to see if any errors were made and their stories will be picked apart for any inconsistencies.

    There is always a chance because everything in the prosecution case must fit together. 

    Any weaknesses can be exploited by a good DUI lawyer and result in acquittal, even in cases where blood alcohol readings are high and impairment clearly observed.

    Examples where no conviction will apply

    Just a few examples where a person accused of DUI can escape a conviction (and therefore loss of license) include: 

    • When the accounts of the incident from two or more police officers describing your impairment do not precisely match: if there are discrepancies (even minor ones), doubts may creep into the prosecution case and this can be exploited by a good DUI lawyer
    • If you were left in a state of indefinite uncertainty about your fate in the face of outstanding charges. 
    • When the time between being stopped and taking the first intoxication test exceeded two hours.
    • When the prosecution fails to prove that you were operating the vehicle (i.e. that you were behind the wheel) – for instance when the police arrive after an accident.
    • If you’re not granted the right to a lawyer at the earliest opportunity, even if that is at the roadside.

    There are many more possible ways to win an acquittal in a DUI charge.

    However, bear in mind that if you escape the DUI charge, you can still face other related charges. It may mean that you escape a criminal conviction and can keep your license, though.

  7. 7
    Can I Travel to the U.S. if I had Recently been Charged with a DUI?

    Impaired driving is an indictable offence in Canada, and people with DUI cases in the U.S. are generally not permitted to cross into Canada. However, if you are charged with DUI in Canada, are you able to travel to the United States? Unfortunately, the answer to this question can vary from situation to situation, and it is always wise to consult with a lawyer before trying to cross the border to the U.S. with any type of criminal record. 

    Having any type of criminal record can cause issues when trying to enter the U.S. The Customs and Border Protection (CBP) agents have significant discretion to turn people away and refuse to admit them into the U.S. Generally speaking, minor offences should not affect your admissibility. In the United States, a first-time DUI is a misdemeanor offence, not a felony. For this reason, it is not taken as seriously as it is in Canada for the purposes of entering the country. 

    If you only have one DUI on your record, chances are that you will not have problems entering the United States. However, if you have multiple DUIs or one DUI plus other offences that show up on a background check, you could be turned away. 

    Multiple DUIs are taken much more seriously than a first-time offence in the U.S. One DUI means you may have made a mistake and an isolated error in judgment, multiple DUIs tend to indicate that you have little regard for the law or the safety of others. For this reason, having multiple DUIs on your record may result in inadmissibility to the United States. 

    Additionally, you might encounter problems if you have a DUI plus other types of convictions, even minor ones. This indicates a pattern of criminal activity and disregard for the law to CBP agents. There is no telling which specific combination of offences on your record will result in inadmissibility or not. However, if you have been refused entry in the past, it is likely that you will be refused entry again.

    If you have multiple DUIs or you have previously been refused entry to the U.S., you can apply for an entry waiver. This requires submitting many forms, references, and other documents to the U.S. Department of Homeland Security (DHS). This application admits to your criminal record but asserts that you have the moral character in line with immigration standards despite your past convictions. If DHS finds that you qualify for a waiver, you will be able to travel to the U.S. with DUIs on your record.

  8. 8
    Am I going to get a criminal record from my DUI charge?

    A charge of driving under the influence of alcohol or drugs (DUI) is a criminal charge in Canada, as laid out in section 253(1)(a) of the Criminal Code.

    So, yes, if you’re convicted of DUI, you will have a lifelong criminal record – even if it is your first offence.

    Some of the main consequences of having a criminal record may include:

    • Being denied entry into the United States or other countries 
    • A negative impact on your immigration status if you’re not a Canadian citizen
    • Being denied certain types of jobs
    • Jail time
    • Losing your drivers’ license

    Summary convictions vs indictments

    Most DUI prosecutions in Canada are summary conviction offences. Summary means “quick and simple” in this sense.

    Such offences are considered less serious than indictable offences and can proceed without a jury trial and/or indictment.

    They are also punishable by shorter prison sentences and smaller fines.

    Sometimes, DUI prosecutions can lead to indictments. These are more serious offences and can only be tried after a preliminary hearing to determine whether there is a prima facie case to answer or there should be a trial by the grand jury.

    Both summary and indictment convictions are criminal convictions and they appear both in Canadian federal laws and in the legislation of provinces and territories.

    For summary convictions, the maximum penalty is:

    • A sentence of six months of imprisonment
    • A fine of $5000, or
    • Both

    In DUI cases, the penalty for a first offence is a mandatory minimum fine of between $1,000-2,500.

    For a second offence, there is a mandatory minimum of 30 days of imprisonment.

    For indictment convictions, the jury and judge will decide the outcome and sentencing.

    Note that, with indictable offences, there is no limit to when the charge can be laid. However, for summary offences, the accused must be charged within six months of the act taking place.

    How to avoid a criminal record from your DUI charge

    The way to avoid a criminal record from your DUI charge is to hire an experienced DUI lawyer and win your case or get it dismissed!

    Unfortunately, lose the case and you will have to face up to a criminal conviction.

    No matter how hopeless your case seems and how bad the evidence against you looks, a good DUI lawyer may be able to help.

    They are experienced at looking at the evidence against you and finding errors or gaps in the prosecution case.

    The burden of proof for the prosecution is high and the conduct of the arresting officer(s) can be closely examined.

    The prosecution needs to prove that your ability to operate a motor vehicle was impaired by alcohol or a drug to some extent, and they need to prove this beyond a reasonable doubt.

    They often make mistakes and must fit many “jigsaw pieces” together perfectly to earn a conviction against you.

    There are many examples of how cracks in the prosecution case can appear.

    Examples where a DUI charge may lead to no conviction

    Some typical examples of where an accused person will be acquitted of DUI include:

    • The prosecution fails to prove that you were operating the vehicle (i.e. that you were behind the wheel). This can be particularly difficult to prove in a case where the police arrive after an accident.
    • The time between when you were stopped and when you took the first intoxication test exceeded two hours.
    • When the police stopped you, your breath smelt of alcohol and you were slurring your speech. However, if that’s all the prosecution has to demonstrate impairment, you should be acquitted of the impaired driving charge because your inability to operate a motor vehicle was not demonstrated clearly enough.
    • Two different police officers describe your impairment differently: if their stories don’t match or there are notable gaps, doubts about the prosecution case will arise in the judge’s mind and that can be exploited by your defence lawyer.

    These are just a few possible scenarios. There are many others.

    Note that, since December 2018, you can no longer use the “bolus” defence. This is where you argue that you were arrested immediately after having your last drink and the alcohol you consumed before being arrested was not in your blood while you were driving, It showed when the breath tests were performed later at the police station.

    Note also that if you escape the DUI conviction, this doesn’t mean you won’t face other related charges to the case. However, it may mean that you escape a criminal conviction.

  9. 9
    Will my DUI charge affect my immigration status?

    If you are convicted of DUI, in some cases it will.  In others, it will not.

  10. 10
    What is the Ignition Interlock Program?

    Impaired driving convictions come with a mandatory driver’s licence suspension, which can make it difficult to keep your job and meet other obligations. While you likely cannot wait to get your licence back, there is another requirement for all impaired driving offenders before they can get their licences fully reinstated – participation in the Canada Ignition Interlock Program.

    An ignition interlock is a small device that can be attached to the ignition of your personal vehicle. Also called a “blow box” or “breathalyzer,” the interlock device requires a breath sample from the driver before it will allow the vehicle to start. The device tests the breath sample for alcohol and will only allow the car to start if no alcohol is detected. The device can require additional breath samples while the car is moving to prevent someone other than the driver blowing and getting the car to start. If alcohol is detected, the vehicle can be disabled.

    You can apply for the program as early as 30 days before your licence suspension ends. In order for Driver Fitness and Monitoring to approve your application, you must complete the requirements for licence reinstatement, including paying the required fees. For first-time offenders, you must complete the Planning Ahead course. Multiple offenders must complete the IMPACT program.

    You will then need to contact Smart Start Canada, which is the approved installer of ignition interlock devices. Once you have the device, you need to obtain your restricted driver’s licence in order to operate your vehicle. With that licence, you can drive as long as you adhere to the conditions of your ignition interlock. 

    Once you complete your term without any issues, you can have your full licence reinstated, and the device removed. If the device detects alcohol and issues warnings, your term can be extended before you can successfully complete the program.

    While the ignition interlock program allows you to regain restricted driving privileges, it can be costly. You will be responsible for all associated costs, including:

    • Application fees
    • Licence reinstatement fees
    • Getting the device installed by Smart Start Canada
    • Maintenance and readings of the device
    • Rental costs for the device 
    • Removal of the device

    While there are some reasons that might warrant an exemption from the program, such as documented medical conditions, you cannot use financial constraints as a valid reason to be exempt. 

    Navigating the process of the ignition interlock program in Canada can be complicated, confusing, and costly. It is preferable to prevent an impaired driving conviction when you can to avoid mandatory participation in the program. Discuss your impaired driving charges with a defence lawyer right after an arrest.

  11. 11
    Will my DUI charge prevent me from certain types of employment?

    If you are convicted of DUI, in some cases yes.  This will depend on your chosen profession and/or your employer.

  12. 12
    Will I lose my license because of my DUI? If so, for how long?

    If you are convicted of DUI, yes.  How long depends on the circumstances of the file, and your criminal record.

  13. 13
    Will I go to jail because of my DUI? If so, for how long?

    If you are convicted of DUI, yes.  How long depends on the circumstances of the DUI file, and your criminal record.  Generally, people with no related record and who have not killed or injured someone do not go to jail, but there are circumstances where this could happen.

  14. 14
    Look, I’m a really good person. I’ve never done anything like this before. It’s my first DUI. A criminal record will really make it hard for me to find work, and I REALLY need my license. I need it for work, and I need it to drive my family around. Do you think the crown will just spontaneously drop all the charges?

    Probably not.  Crown prosecutors do stay charges, but it won’t be based on your general good character.  Whether you win the DUI charge or not will depend on the specific defences available on your file.  It will have nothing to do with your work or family considerations.

  15. 15
    I’ve heard that if you fail the breathalyzer, you are “automatically guilty.” Is that true?

    No. Even if you blow over the legal limit or refuse to provide a sample, there may be relevant Charter or statutory applications that can be made. The general public usually thinks of these things as “technicalities,” but the reality is that in a functioning democracy, civil liberties are very important. What to the lay-person may seem relatively trivial can translate into an acquittal (i.e. you win). This is because the state (usually via the police) is responsible for protecting your constitutional rights. When they do not do this, they lose the benefit of a conviction.

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