How to Beat A DUI Ontario

Last Updated: February 1, 2024

How to Beat A DUI Ontario

Driving under the influence (DUI) or impaired driving is one of Canada’s leading criminal causes of death and injury, according to the Government of Canada. The prospect of a conviction with harsh consequences can be overwhelming, especially for first-time offenders. If convicted of a DUI offence, individuals will face a permanent criminal record, fines, possible jail or imprisonment time, mandatory rehabilitation programs, higher car insurance rates, and an ignition interlock device in their vehicle.

In order to avoid the consequences of conviction, it is crucial to use the best legal defence strategy to beat your DUI charge. Book a Free Consultation with Oykhman Criminal Defence to ensure you have the best defence possible, and we can discuss your options.

What is a DUI (Impaired Driving)

Overview of the offence

Impaired driving includes operating a vehicle or having “care and control” of a vehicle while your ability to do so has been compromised by alcohol, drugs or a combination of the two. A driver does not need a blood alcohol concentration (BAC) or drug reading over the legal limit for the police to charge them with impaired driving. So long as their ability to drive was affected by the consumption of alcohol, drugs, or a combination of the two, an individual may be driving while impaired.

Impaired driving is not limited to driving the vehicle when the police stop you. If the police have a reason to suspect that you were operating a vehicle or in care and control of a vehicle within the preceding 3 hours, they may make a demand for any of the following:

  • Breath Sample: The police may ask you to provide a breath sample into an Approved Screening Device (ASD) to test your BAC.
  • Oral Fluid Sample: The police may ask you to provide an oral fluid sample into an Approved Drug Screening Equipment (ADSE) to test for drugs in your system.
  • Standardized Field Sobriety Testing (SFST): The police may ask you to participate in a sobriety test similar to what you may have seen in television shows or movies. For example, the police may ask you to walk in a straight line.

Failure to comply with the above demands is a criminal offence and will not prevent the police from charging you with impaired driving.

Ways to Beat a DUI

Disputing Reasonable Suspicion

Under section 320.27 of the Criminal Code, a police officer must have reasonable grounds to suspect that the individual is impaired and has been operating a vehicle within the preceding 3 hours. The officer may try to form reasonable suspicion by asking the driver some questions or observing the driver’s behaviour. If the officer has reasonable suspicion, they may demand further tests, such as a breath sample. If the officer did not have reasonable suspicion, there may be grounds to challenge the demand.

Challenging the Illegality of the Stop

The police have the power to conduct random roadside stops to investigate:

  • Impaired driving;
  • Licencing;
  • Insurance; or
  • Motor Vehicle Fitness.

If the police do not have any of these reasons in mind when they pull you over, the stop of your vehicle may have been due to other arbitrary reasons, such as racial profiling. Randomly stopping a vehicle for any reason other than the four listed above is impermissible and may allow you to challenge the legality of the stop.

Questioning the Field Sobriety Tests

Suppose a police officer has reasonable suspicion that a driver is or was impaired by alcohol or drugs in the preceding 3 hours of operating a vehicle. In that case, they may demand a Standardized Field Sobriety Test (SFST). Under this demand, the police may look at your eyes and ask you to:

  • Walk in a straight line and turn; or
  • Stand on one-leg.

If the driver fails the SFST, the police will likely have reasonable and probable grounds to make a DUI arrest. However, unimpaired individuals may fail a SFST for various reasons, such as a medical condition, injury or disability. If this is the case, you may be able to challenge the results of the SFST.

Lack of Consent for Test

For the police to demand a breath or blood sample or to conduct a SFST, they must have reason to suspect that you are impaired while operating or in the care and control of a motor vehicle. If the police make such a demand, you must comply and provide the sample.

If the police cannot form reasonable suspicion, they cannot demand a breath sample, blood sample or SFST. However, the police can request that you take one of the tests voluntarily. Your consent will only be valid if you understand the consequences of doing so. If you do not understand the consequences, you may be able to challenge the collection of the test results.

Challenging the Test Results

The result of samples of a person’s breath into an approved screening device operated by a qualified technician is conclusive proof of that individual’s BAC.

It is also the case that the results of any blood samples will be conclusive proof of that individual’s blood drug concentration absent any evidence to the contrary.

You may not challenge the evidence of the results of a blood sample by demonstrating:

  • The amount of alcohol or drugs you consumed;
  • The rate at which the alcohol or drug would have metabolized or absorbed in your body (the “last drink” defence is no longer permissible); or
  • A calculation of what your BAC or blood drug concentration would have been when the police took the sample.

Instead, you may challenge whether:

  • The device was an “approved screening device”;
  • The device was properly calibrated;
  • The device was properly operated; or
  • Whether the sample was collected as soon as practicable.

Certificate Not Served

To use any test results collected during the course of an investigation, the analyst, medical practitioner or technician who conducted the test must sign a certificate showing that they were properly qualified to perform the test. In order to use the test results at trial, the Crown must notify the defence that they intend to produce them at trial.

If the Crown does not give the defence notice before the trial of the Crown’s intent to produce the certificate, there may be grounds to challenge the admissibility of the test results.

Contradictions Between Officers

Suppose two police officers are investigating your roadside stop. Any contractions regarding their observations might help demonstrate that they did not have reasonable grounds to suspect that you were impaired and, thereby, make a demand for a breath or blood sample or SFST.

Lack of Evidence of You Behind the Wheel

The police may come upon a scene of an accident but not witness you behind the wheel of the vehicle. In this situation, the police may not be able to demonstrate that you were driving while impaired unless the police can collect some other evidence, such as statements from witnesses, that you were the driver of the crashed vehicle.

Even if the police cannot demonstrate that you drove while impaired, they might attempt to show that you were under the care and control of the vehicle while impaired. If this is the case, you might demonstrate that there was no realistic risk of danger to the public because the vehicle was inoperable.

11(b) Application

Under section 11(b) of the Charter, any person charged with an offence has a right to be tried within a reasonable time. As a result, a stopwatch starts the moment charges are laid to the actual or anticipated end of the trial. If the entire process exceeds 18 months in provincial courts or 30 months in superior courts, you may be able to assert that your right to trial within a reasonable time has been compromised. If the Crown cannot account for the delays, the Crown will need to stay the charges (not prosecute the matter any further).

Late ASD Demand

As soon as a police officer forms the required grounds, they may demand that you provide a breath or blood sample into an approved screening device (ASD). The demand must be made “as soon as practicable.” Suppose there is a significant delay between when the officers form the grounds to make the demand and issue the demand. In that case, there may be cause to challenge any results from the breath or blood sample test.

No Grounds for Arrest

For the police to make an arrest, they must have reasonable and probable grounds to believe you were impaired while driving.

What May Be Reasonable and Probable Grounds

  • Failing an ASD
  • Failing an ADSE
  • Failing a SFST

What May Not Be Reasonable and Probable Grounds

  • The smell of alcohol coming from the driver or vehicle
  • One swerve of the vehicle

10(b) Breach

In impaired driving cases, immediately upon arrest, the police must inform the individual of their right to counsel and allow them to exercise that right. If the police did any of the following, then you may be able to exclude any evidence that they collected during the course of the transaction:

  • Failure to Provide Rights: The police did not inform you of your right to counsel
  • Delay in Providing Rights: The police waited too long to inform you of your right to counsel.
  • Failure to Provide Opportunity to Exercise Rights: The police did not allow you to contact counsel.
  • Delay in Providing Opportunity to Exercise Rights: The police waited too long to allow you to contact counsel.

The police cannot use any statements you make against you at trial before they inform you of your rights. However, they may use your statements to form the reasonable suspicion necessary to demand roadside tests.

Delay in Collecting Samples

In addition to police needing to collect a sample with an ASD “as soon as practicable,” officers must conduct the test without unwarranted delay. An officer may delay administering a test for 15 minutes if they have reason to believe or suspect that the driver has consumed alcohol within the last 15 minutes. However, if the officer delays administering the test for an unwarranted reason, there may be grounds to challenge the use of any test results in court.

Intoxilyzer Not Calibrated

Before the police use an ASD, the device must be properly calibrated (usually every one to two weeks). In order for the Crown to use any intoxilyzer results at trial, the police must demonstrate that the ASD was properly calibrated or that the officer had reasonable grounds to believe the ASD was properly functioning at the time the sample was taken.

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