Impaired driving cases may involve scientific evidence, police procedures, constitutional rights, and technical questions about testing. A detailed review can help identify issues that may be relevant to the defence.

1. Reviewing Police Conduct and Charter Rights

The Canadian Charter of Rights and Freedoms protects individuals against certain unlawful police actions and safeguards fundamental rights during detention and investigation.

Depending on the circumstances, a defence review may examine:

• Traffic stops and detention: Whether the stop or subsequent detention complied with applicable legal requirements.

• Breath demands: Whether the police had the required legal grounds to make the demand.

• Right to counsel: Whether the accused was informed of their right to speak with a lawyer and whether the applicable obligations were met.

• Collection of evidence: Whether the procedures used to obtain evidence complied with constitutional and statutory requirements.

• Questioning and statements: Whether statements were obtained in accordance with applicable legal safeguards.

Where a potential Charter breach is identified, the defence may assess whether a court application is appropriate, including an application to exclude evidence where permitted by law.

A Charter issue does not automatically result in the exclusion of evidence or the dismissal of a charge. The applicable legal test and the circumstances must be considered.

2. Examining Breath-Test Evidence

Breath-test results can play an important role in an Over 80 prosecution. The testing process and the reliability of the evidence may therefore require close examination.

Depending on the case, relevant issues may include:

• The records relating to the approved instrument used.

• Whether the required testing procedures were followed.

• The qualifications and actions of the person operating the instrument.

• The timing and sequence of the breath samples.

• Whether the disclosed records reveal inconsistencies or other issues requiring investigation.

The relevance of a particular technical issue depends on the evidence and the applicable legal requirements. Not every procedural irregularity makes a breath result inadmissible.

3. Evaluating the Officer’s Observations

In cases alleging impairment by alcohol or drugs, the prosecution may rely on an officer’s observations and the surrounding circumstances.

A defence review may consider:

• The officer’s description of the driving.

• Observations concerning speech, balance, coordination, or behaviour.

• The circumstances in which roadside tests were conducted.

• Available dashcam or body-worn camera footage.

• Whether other evidence supports or contradicts the officer’s account.

Where appropriate, the defence may examine whether the observations reliably support the allegation of impairment or whether alternative explanations should be considered.

4. Assessing Alcohol Absorption and Testing Timelines

In some Over 80 cases, the timing of alcohol consumption, driving, and breath testing may be relevant.

For example, the blood alcohol concentration may continue to change after drinking stops. In appropriate circumstances, scientific evidence may help assess whether the test results accurately establish the legally relevant concentration.

A case review may consider:

• The reported timing and quantity of alcohol consumption.

• The time the vehicle was operated.

• The timing of the breath samples.

• The reliability and completeness of the available evidence.

• Whether expert toxicology evidence may be appropriate.

These cases can be scientifically complex, and a rising blood alcohol concentration argument does not automatically provide a defence. Its viability depends on the facts and applicable law.

5. Examining Drug-Impairment Allegations

Impaired driving investigations may involve allegations of impairment by cannabis, prescription medication, or other drugs.

Depending on the circumstances, the evidence may include roadside screening, standardized field sobriety testing, an evaluation by a qualified drug recognition expert, blood samples, or other relevant material.

A defence review may examine whether the investigative procedures were legally authorized, whether the testing and observations were reliable, and whether the evidence establishes the applicable elements of the offence.

The legal analysis differs depending on whether the allegation concerns actual impairment, a prohibited drug concentration, or a combination of substances.

6. Exploring Appropriate Resolution Options

Depending on the evidence, the circumstances of the incident, and the Crown’s position, it may be appropriate to explore a negotiated resolution.

The available options depend on the specific charge and the strength of the prosecution’s case. A reduction to a non-criminal traffic offence, such as careless driving under Ontario’s Highway Traffic Act, is not available or appropriate in every case.

Before considering any proposed resolution, it is important to understand the potential consequences for your criminal record, driving privileges, insurance, employment, and travel.

Lex Magnus Law can assess the legal options relevant to your circumstances and explain the implications of any proposed resolution. No particular result can be guaranteed.

The steps you take after being charged can affect your understanding of the case and your ability to make informed decisions.

• Keep relevant records: Preserve any documents, receipts, messages, or other information that may help establish the timeline of events.

• Record your recollection: As soon as practical, write down what you remember about the stop, testing procedures, conversations with police, and events leading up to the incident.

• Follow all legal requirements: Comply with existing release conditions and any applicable licence restrictions. Do not drive if your licence is suspended or you are otherwise prohibited from doing so.

• Avoid discussing the details publicly: Be cautious about sharing information about the case on social media or with others before obtaining legal advice.

• Seek legal advice promptly: A lawyer can explain the charge, review your circumstances, and help you understand the next steps.

If police wish to question you, you should understand your legal rights before deciding how to respond.