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Driving Offences

Noah Neaman has experience with a number of driving related offences from 3-day to 90-day Immediate Roadside Prohibitions (“IRP”) to impaired driving offences and dangerous driving.  Two common offences are a 90-day IRP and impaired driving which are discussed below.

90-day IRP

A 90-day IRP is the most punitive of the IRP prohibitions.  A 90-day IRP is initiated when a police officer stops a driver and demands a “breath sample”.  In most cases the driver provides a breath sample into an “approved screening device” (“ASD”).  If the ASD reads a “FAIL”, or if the driver refuses to provide a breath sample, then the driver may be issued a 90-day Immediate Roadside Prohibition (“IRP”).

A driver who is issued an IRP is prohibited from driving for 90 days and is subject to a $500 fine.  In addition, his/her vehicle is subject to impoundment for 30 days.  The driver will also be referred to the Responsible Driver Program.  The B.C. Superintendent may also require the driver to install an ignition interlock device in the vehicle.  The costs associated with this program are expensive and can run into the thousands of dollars.

As stated, Noah Neaman has experience with a number of driving related offences, including IRP’s. If you have been served with an IRP, contact Noah Neaman for a free consultation.

Impaired/Drunk Driving/DUI

Charges of drunk driving/driving while impaired/DUI, driving with a blood alcohol level over .08 or refusal to provide a breath sample are serious and can result in a one year minimum driving prohibition, a minimum $1000 fine and a criminal record. For example, if you are a truck driver an impaired/drunk driving conviction can result in a loss of your licence to drive, in addition to a fine. In some cases the punishment is more severe and can result in jail, depending on the circumstances, record of the individual and type of charge. In addition, your car insurance rates may be affected. A criminal record could affect your ability to travel to the United States and could impact an offender’s employment opportunities.

These charges may seem devastating. At Neaman & Company we assist numerous clients and take profound measures to ensure the best possible outcome for their impaired cases. We have been serving the Vancouver region with regard to impaired/drunk driving cases for many years and are proud of our results.

What Happens When I am Charged with Drinking and Driving / Drunk Driving / DUI?

You are normally charged with one or more of the following three charges when facing a drinking and driving charge/impaired/drunk driving charge:

  • Driving with an Alcohol Level over .08 – This charge alleges that you were driving with a blood alcohol level over 80 milligrams.
  • Driving While Impaired – This charge alleges that you were driving while under the influence of alcohol or drugs.
  • Failure to Provide a Breath Sample – This charge alleges that you failed or refused to provide a breath sample on the demand of a police officer.

In impaired/DUI cases where an individual has provided a breath sample, they will commonly be charged with the first two charges (impaired and over .08). The Crown lawyer prosecutor only needs to prove one of these charges to obtain a conviction. Where a breath sample was not provided to a police officer, the prosecutor may choose to charge you with failure to provide a breath sample and/or impaired /drunk driving/DUI.

For example, if you are pulled over by a Vancouver police officer for impaired driving/drunk driving/DUI, that Vancouver officer may charge you with refusal to provide a sample if he/she believes that you have failed to comply with the order for a sample.  In most cases, that same police officer may simply charge you with impaired driving/drunk driving and over .08.  In any case, it is advisable to hire a lawyer.  At the law firm of Neaman & Company, we can explain the differences between these charges.

Impaired/Drunk Driving/DUI Defences

What are the defences to Impaired Driving/Drinking and Driving/DUI?

The Crown lawyer has the burden of proving the DUI/drunk driving case beyond a reasonable doubt. This means they must prove that you are guilty of all the elements or parts of the drunk driving/impaired drinking and driving offence. The prosecutor does this by providing a judge with evidence of drinking and driving/impaired driving. This evidence may include testimony from a police officer regarding impairment, a certificate of a breath sample etc.

In the following section you will learn about some of the typical defences to charges of drinking and driving/impaired driving/drunk driving:

1) Blood-alcohol Level Was Not Over .08 When Driving

The Crown lawyer prosecutor must prove that your alcohol level was over .08 when you were driving. The Crown lawyer normally attempts to submit a certificate that alleges that your blood-alcohol level was over .08 to successfully win an impaired/drunk driving charge. The police must follow very precise steps and the officer who took the sample must also follow rigorous checklist. If one of these steps is missed, the certificate may be excluded from the impaired/drunk driving trial. At Neaman & Company we look at every step to see if any detail is missing.  If successful, the following defences can result in the exclusion of the certificate at the DUI trial:

– The police officer did not have reasonable and probable grounds to make a breath demand
A police officer must have formed the opinion that you were impaired/drunk while driving in the past three hours from the time he stopped you. The officer may form this opinion based on any number of factors including erratic driving, bloodshot eyes, slurred speech and the smell of alcohol. At Neaman and Company we look at the police officer’s notes to see whether the officer obtained enough information from you to form that opinion. Normally, there must be a number of signs of impairment before the opinion is formed – otherwise, your breath sample may not be admissible in court. Drinking/Driving/Impaired cases are often dismissed based on a lack of reasonable and probable grounds.

– The police officer did not form a reasonable suspicion to request that you take a roadside screening device
A police officer must have some basis for requesting that you blow into a roadside screening device when you are pulled over on suspicion of drinking and driving/impaired driving. This device is used by police to obtain a fast breath sample from you. The results from this device do not form part of the certificate used for a conviction. However, if you fail this test the police may use the results to form their opinion that you are impaired and may demand a breath sample from a more accurate sample from a breathalyzer at a police station to prove that you were impaired/drunk.

The police must have some suspicion that you are impaired in order to request a sample from the roadside screening device. At Neaman & Company we look at all of the police officer’s notes to check for this suspicion.

– The police officer did not demand a breath sample from you as soon as possible
If the police officer did not request a breath sample demand from you within 30 minutes of forming the opinion that you were impaired, the breath sample you provided to the police may be inadmissible at your trial. We look at the police officer’s notes to determine whether they made a demand within this 30 minute period.

– The police must obtain a second breath sample from you at least 15 minutes after obtaining the first sample
After you have blown into the breathalyzer at the police station the first time, the police need to wait at least 15 minutes for the second sample. This is known as the observation period. Failure to wait the 15 minutes can result in an acquittal for your impaired driving/drunk driving/DUI case.

– The police did not obtain a breath sample from you within two hours of stopping you
If the police fail to obtain a breath sample from you within two hours of the alleged offence, the sample may be inadmissible in court. The police need to have a very good reason why there was a delay beyond two hours. At Neaman & Company we check the times of all notes made by the police. A failure to do so can result in an acquittal for your impaired driving/drunk driving/DUI case.

– The sample was not properly obtained due to problems with the breathalyzer instrument
This is a very complicated area of law in impaired driving/drunk driving/DUI cases. In simple terms, a breath sample can be inadmissible in court for a variety of reasons related to the problems with the breathalyzer instrument. For example, the breath sample must go directly into the instrument. The breathalyzer must be operated by a qualified breathalyzer analyst. The analyst must analyze each sample. The machine must work properly. Once the samples are provided, the certificate that is subsequently issued must follow exact guidelines. If those guidelines are not strictly followed, the certificate/samples may be inadmissible in court. We sometimes ask the Crown lawyer prosecutor to produce the analyst at the drunk driving/DUI trial for cross examination. Cases may be dismissed if the analyst has missed something or failed to follow the proper procedures. In such a case the drunk driving/impaired driving/DUI case can be dismissed.

2) Canadian Charter of Rights Defences

In many impaired cases/drinking driving/DUI accused individuals can ask that judges dismiss cases or rule certain evidence inadmissible at trial when their rights under the Charter of Rights and Freedoms have been violated. At Neaman & Company we have made numerous Charter applications to dismiss these cases.  This is a very complicated area of law. However, we have listed just a few examples of situations where it is possible to argue that evidence be ruled inadmissible or cases be thrown out based on Charter violations:

  • Where the police fail to inform you, when you were arrested, that you had a right to counsel.
  • Where there was a delay in telling you about your right to counsel.
  • Where you did not have a reasonable opportunity to exercise the right to retain and instruct counsel before providing a sample.
  • Where you were not provided an opportunity to consult with a lawyer in private before providing a sample.

3) Excuse Based Defences

In some cases, it is possible to raise a defence based on an excuse. It is important to consult with a lawyer regarding these defences. At Neaman & Company we go over every aspect of your case to ensure that all defences are canvassed and covered. We list one such example:

– Last Drink Defence
Where you are pulled over shortly after the completion of consumption of alcohol – especially where you consume 2 or more drinks in quick succession, then because the alcohol absorption takes time, it is possible to argue that your blood alcohol level was below the legal limit when driving but rose above that limit at the time of providing the breathalyzer sample. Your drunk driving/Impaired/DUI case may be dismissed on the basis of this defence. Note that this defence can only be used in very limited circumstances.

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