Impaired driving, impaired, driving, charge, lawyer, drinking and driving, DUI, driving under the influence, drunk driving, criminal lawyer

Many clients mistakenly believe that just because they have been charged with a drinking and driving offence that they will inevitably be convicted and will lose their license.

While in virtually all cases the client will lose his or her licence for 90 days because of Ontario's Administrative Driver's Licence Suspension ("ADLS"), police do make mistakes, and defences are sometimes available.

The more common defences will be explored below:

1. The Carter Defence: Typically this situation arises when the accused is certain that the amount of alcohol he consumed would not give rise to the breath results achieved. For instance, a 150 lb. man who had three (5% alcohol)12 ounce bottles of beer, over a span of two hours could not possibly achieve a blood alcohol concentration of 105 milligrams of alcohol per 100 milliliters of blood. If there were such a reading, there could be a "Carter Defence". Essentially the defence is that the breath machine was not working properly. Therefore if the accused is believed or what he says is "capable of belief" as to his alcohol consumption, there would be an acquittal.

Sometimes documentary evidence is available to assist the accused. For instance, a credit card or bar bill showing what alcohol was purchased and at what time. A witness statement from the bartender and/or any persons drinking with the accused could also assist. These witness statements must be independent. Never discuss your recollection of what you had to drink with your witness(es).

2. Bolus Drinking or "last drink defence": In this circumstance, the accused may have "chugged" his/her last drink and was then stopped by police just a few minutes later. This defence is based on the last drink not yet being fully absorbed in the driver's system at the time she was stopped by the police. It would have been in her system and at the higher reading only at the time breath tests were later completed.

3. Rights to Counsel: An accused person must be advised as to his rights to counsel without delay upon arrest or detention. Occasionally police do not provide the accused with their full array of rights to a lawyer. For instance, the police are required to ask whether there is a particular lawyer the accused wishes to speak to; the police should also provide the Yellow Pages, privacy, and a telephone to the accused, depending on the circumstances of the case.

We at Aitken Robertson have had considerable success in rights to counsel defences in drinking and driving cases.

We have reviewed only three possible defences. Many more are available. Before making a decision as to whether to plead guilty, it is in your best interests to speak to experienced criminal lawyers, and to have the real merits of your case fully explored. You may have a defence.

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