CDSA 5(3)

Defence for Drug Trafficking Charges

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    Offence: Drive (or have care or control) with a blood alcohol concentration over the legal limit (80 mg of alcohol per 100 ml of blood or more) contrary to section 320.14(1)(b) of the Criminal Code of Canada.

    * Note: This offence applies to the operation of any conveyance with a blood alcohol concentration over the legal limit. A conveyance is defined as a motor vehicle, a vessel, an aircraft or railway equipment

    Charged with a Criminal Offence Like “Over 80”? Get Every Defence

    With over 25 years experience, Norm and Marcus have successfully defended hundreds of drinking and driving cases, including impaired driving/care or control (by alcohol), impaired driving/care or control (by drug), Over 80 (now 80 or over) and refuse or fail to provide a breath sample. Many of these cases have involved bodily harm or death. Accomplished trial lawyers, Marcus and Norm will carefully assess your case and argue for every defence available to you, including defences under the Canadian Charter of Rights and Freedoms.

    Do not plead guilty to Over 80 without discussing your case with a lawyer

    Drinking and driving offences have mandatory minimum sentences and a conviction will result in a criminal record, a lengthy driving suspension, skyrocketing car insurance rates and fine or jail. Being found guilty may also result in negative employment, immigration and personal consequences to you and your family for years to come. You have everything to lose and little to gain by pleading guilty to these charges rather than fighting them.

    Every Defence. Norm and Marcus will ensure that all of your rights are protected. You are presumed innocent. We will fight for the positive result you need to move on with your life.

    To speak with Norm or Marcus, call (416) 855-7799 or email us at [email protected] We accept calls 24 hours a day, 7 days a week. Confidentiality guaranteed. Free consultations. Meeting by appointment only.

    Toronto Criminal Defence Lawyers

    Defences for Over 80

    • Identity of offender not proven;
    • Driving or care or control not proven;
    • Having a blood alcohol concentration over the legal limit not proven;
    • Having a blood alcohol concentration over the legal limit at the operable time not proven;
    • Consumption of alcohol was unintentional;
    • Consumption of alcohol took place after operation has ceased;
    • Duress;
    • Necessity;
    • Automatism;
    • Breach of right to be free from unreasonable search and seizure (Charter);
    • Breach of right to be free from arbitrary detention (Charter);
    • Breach of rights to counsel (Charter)
    • Breach of right to a trial within a reasonable time (Charter)
    • Excessive use of force by police (Charter)
    • Abuse of process (Charter)

    To be found guilty of Over 80

    The Crown Attorney has to prove ALL of these things BEYOND A REASONABLE DOUBT:

    1. The accused was driving or was in care or control of a conveyance (i.e. a motor vehicle, vessel, aircraft or railway equipment);
    2. That within two hours of operating a conveyance, the accused’s blood alcohol concentration was greater or equal to 80 milligrams of alcohol per 100 millilitres of blood;
    3. the accused intended to drive or be in care or control of a conveyance after the voluntary consumption of alcohol and/or a drug.

    How the prosecutor will try to prove guilt of Over 80

    To prove this charge the Crown will usually seek to admit evidence of breath samples you provided at the police station into an instrument called an Intoxilyzer 8000C.  If you were unable to provide a breath sample due to a medical condition, but had blood drawn instead (normally at a hospital after a car accident), the police must obtain a search warrant for your medical records.  In order for evidence of breath or blood samples to be admitted at trial, there are a number of technical requirements that the Crown Attorney must prove.  You are also protected by the Canadian Charter of Rights and Freedoms.  If your Charter Rights were breached by the police, your breath test results or medical records can be excluded from being used as evidence against you.   

    If the Crown Attorney proves the accused was occupying the driver’s seat, the accused is presumed to have been in care or control UNLESS he/she establishes (on a balance of probabilities) that he/she did not occupy the driver’s seat for the purpose of setting the vehicle in motion  

    Care or control is proven if the Crown Attorney proves that the accused engaged in an intentional course of conduct associated with the vehicle in circumstances where there was a realistic risk of danger to persons or property.

    How we can defend you from Over 80 Charges

    Drinking and driving cases (DUI/Over 80) are extremely technical to prove and defend.  To ensure you have the best chance of success, it is important that you have a lawyer who is experienced and up-to-date on the most recent court cases.  Norm has successfully defended hundreds of drinking and driving cases and is considered to be one of the top up-and-coming drinking and driving lawyers in Ontario.  

    Every Defence.  

    Punishment IF found guilty of Over 80

    For a first offence, 

    • If your blood alcohol concentration is proven to have been between 80 and 119 mg of alcohol in 100 mL of blood, the mandatory minimum sentence is a fine of $1000;
    • If your blood alcohol concentration is proven to have been between 120 and 159 mg of alcohol in 100 mL of blood, the mandatory minimum sentence is a fine of $1500;
    • If your blood alcohol concentration is proven to have been more than 160 mg of alcohol in 100 mL of blood, the mandatory minimum sentence is a fine of $2000;
    • the mandatory minimum driving prohibition/suspension is one year (note that it may be possible to drive earlier with an ignition interlock device – see link at the end of this page);
    • IF the Crown elects to proceed by summary conviction, the maximum sentence is two years less a day in prison;
    • IF the Crown elects to proceed by indictment, the maximum sentence is ten years in prison;
    • the maximum driving prohibition/suspension is three years; 

    For a second offence,

    • the mandatory minimum sentence is thirty days in prison;
    • the mandatory minimum driving prohibition/suspension is two years;
    • IF the Crown elects to proceed by summary conviction, the maximum sentence is two years less a day in prison;
    • IF the Crown elects to proceed by indictment, the maximum sentence is ten years in prison;
    • the maximum driving prohibition/suspension is ten years;

    For a third or subsequent offence,

    • the mandatory minimum sentence is one hundred and eighty days in prison;
    • the mandatory minimum driving prohibition/suspension is thee years;
    • IF the Crown elects to proceed by summary conviction, the maximum sentence is two years less a day in prison;
    • IF the Crown elects to proceed by indictment, the maximum sentence is ten years in prison;
    • the maximum driving prohibition/suspension is a lifetime driving ban; 

    Additional notes on sentencing

    The above punishments do not include insurance consequences or requirements mandated by the Ministry of Transportation to have your driver’s licence reinstated following a conviction (e.g. Back on Track remedial measures program and associated costs).

    IF a person is convicted of impaired driving, they may be able to drive during part of the driving prohibition period if they are registered in an alcohol ignition interlock device program established by the province. 

    IF the Crown Attorney agrees, the Court MAY, after finding a person guilty of impaired driving, delay sentencing to allow the person to attend a treatment program approved by the province. IF the person then successfully completes the treatment program, the Court MAY sentence the person to a fine or prison sentence that is below the mandatory minimum.  However, after finding a person guilty of impaired driving, in no circumstances can the Court grant a conditional or absolute discharge.  

    Helpful links and resources for Over 80

    http://www.mto.gov.on.ca/english/safety/ignition-interlock-conduct-review-program.shtml

    http://www.mto.gov.on.ca/english/safety/impaired-driving.shtml

    Our Successes at defending Over 80

    R. v. S.L. – Client not guilty due to Charter breach

    Our client was involved in an accident on Highway 401 as a result of sideswiping another car.  A police officer arrived a few minutes later and after speaking to the occupants of the other vehicle, he arrested our client for impaired driving.  Our client was taken to a police station to give breath samples and blew over the legal limit.  She was charged with impaired driving and over 80.  At trial, through effective cross-examination, we successfully discredited the arresting officer’s testimony, showing that it was unreliable.  We then successfully argued that the arresting officer did not have the requisite reasonable and probable grounds to arrest our client, which constituted a breach of our our client’s right to be free from unreasonable search and seizure under section 8 of Canadian Charter of Rights and Freedoms, and that the breath test results should be excluded from evidence.  Both of the charges against our client were dismissed. 

    R. v. T.B. – Criminal charges withdrawn due to numerous Charter breaches

    Our client was observed by police to be driving in an area where they were investigating a possible criminal mischief in relation to damage to property.  Because our client was circling around the area in his vehicle, the police claimed that they believed he may be associated with the mischief so they stopped him to investigate.  The police proceeded to question our client for approximately 10 minutes without advising him of his right to consult with a lawyer.  While speaking to our client, the police observed that his eyes were dilated and he was speaking quickly.  They subsequently made a standard field sobriety test demand to evaluate our client for impairment by drugs.  A few minutes later while conducting this test, the evaluating officer detected an odour of alcohol coming from our client’s breath.  This officer then arrested our client for being impaired by alcohol and made a demand for him to provide samples of his breath.  This demand was made approximately 40 minutes after our client had first been stopped by the police.  The police then brought our client to a police station where he provided two samples of his breath into an Intoxilyzer 8000C.  The breath test readings were both 150 and our client was charged with driving while over the legal limit.  During a pretrial meeting with the Crown Attorney, we explained how the police had breached a number of our client’s Charter Rights during this investigation, including his right to be free from arbitrary detention under section 9 of the Charter, his right to be free from unreasonable search and seizure under section 9 of the Charter and his rights to counsel under section 10(b) of the Charter. The Crown Attorney agreed to our client resolving this matter by way of a guilty plea to Careless Driving under the Highway Traffic Act and a fine.  The criminal charges against our client were withdrawn.  

    R. v. D.P – Client not guilty due to numerous Charter breach

    Our client drove his pick up truck into a hydro pole located on the sidewalk of a busy street in downtown Toronto.  A security guard approached the truck and saw that our client was asleep behind the wheel.  Police were called and had to bang on the driver’s side window to wake our client up.  After speaking with our client, police charged him with impaired driving and brought him to the police station to provide samples of his breath.  At trial, we exposed significant inconsistencies between the evidence of the two officer’s on scene and between the evidence of the two officers and video footage recorded by cameras on the police car and at the police station.  We also successfully argued that a number of our client’s Charter rights were breached, including his right to be free from unreasonable search and seizure (the arresting officer did not have reasonable and probable grounds to believe he was impaired) and is rights to counsel (he should have been given an opportunity to call a lawyer before he was taken to the police station).  The trial judge excluded the results of the breath tests and found that the prosecution had not proven beyond a reasonable doubt that our client was impaired.  Both of the charges against our client were dismissed.

    R. v. S.M – Charges stayed due to unreasonable delay

    A witness called 911 to report a vehicle being driven erratically on a busy road.  This witness observed this vehicle for approximately 10 minutes, weaving in and out of its lane, narrowly avoiding other vehicle, hitting the curb on numerous occasions and being driven at very inconsistent speeds.  The witness communicated the licence plate number of the vehicle to the police who were able to identify the owner’s identification and the address associated with the vehicle.  Police subsequently attended at our client’s address and observed our client driving the vehicle in question into the driveway.  When our client got out of the vehicle and spoke with he police, the police claimed that they observed noticeable signs of impairment, such as unsteadiness while walking, swaying, slurred speech, and red-rimmed, bloodshot eyes.  The police arrested our client for impaired driving and our client was brought to a police station where he provided breath samples registering 200 and 190.  Just under two months prior to the scheduled trial date, the Crown Attorney notified us that they would be requesting an adjournment as the officer had mistakenly scheduled a holiday for the same time as the trial due to a scheduling mix up.  The Crown’s adjournment application was granted and the trial was rescheduled for about eight months down the road.  Prior to the rescheduled trial, we successfully argued that our client’s right to a trial within a reasonable time under section 11(b) of the Charter was breached.  Our client’s charges were stayed which is the same result as an acquittal. 

    R. v. S.D. – Client not guilty due to Charter breach

    Our client was referred to us by another lawyer because of our reputation for successfully defending drinking and driving case.  Our client was stopped by a police officer who felt she was driving in an unusual manner.  While speaking with our client, the officer smelled an odour of alcohol and had her do a roadside breathalyzer test which our client failed.  The officer subsequently arrested our client and read her the rights to counsel.  Our client responded that she had a specific lawyer she would like to speak with.  Our client was brought to a police station and the police called our client’s counsel of choice and left a voicemail message for him to call back.  The police waited approximately 15 minute for the lawyer to call back and then asked our client if she would like to speak with duty counsel.  Our client said she preferred to speak with her lawyer.  The police then told her that they were going to start the breath testing and that if her lawyer called back, they would interrupt the tests to allow her to speak with her lawyer.  Ultimately, before speaking with her lawyer, our client provided two samples of her breath that registered over the legal limit.  A few minutes after she provided the two breath samples, her lawyer called the police station and spoke to our client.  At trial, the judge agreed with our submission that the police officers should have held off and waited for a longer period of time for our client’s lawyer to call back before administering the breath tests.  The Court found that our client’s Charter right to counsel was breached and excluded the breath test results from consideration.  Our client was found not guilty. 

    R. v. L.E. – Client not guilty due to Charter breach

    On a dark snowy night, a passerby observed a car that had apparently driven off the road and flipped over.  He went to see if there was anyone in the car who needed help.  When he got to the car, be noticed that our client was in the upside down car speaking on her phone.  The passerby asked our client if she was ok and claimed that our client was crying and asked him not to call the police.  The passerby smelled alcohol on our client’s breath and assumed she was drunk.  He called the police who arrived a short while later.  The police arrested our client for impaired driving and brought her to the police station to provide two samples of her breath which registered 130 and 120.  At trial, we argued that the arresting officer did not have reasonable and probable grounds to believe that our client was impaired.  The judge agreed with our argument that the poor road conditions were a likely explanation for the accident and that our client’s red eyes and behaviour was most likely explained by the fact that she was upset and traumatized by the accident and had been crying.  The breath test results were excluded from consideration and our client was found not guilty. 

    R. v. D.H. – Client not guilty due to Charter breach

    Our client and her boyfriend were having an argument in front of the boyfriend’s house in the middle of the night.  A neighbour called in a noise complaint to the police.  When the police arrived, they saw our client driving away from the house.  Officers pulled our client over and spoke to her about the noise complaint.  While speaking with our client the police smelled an odour of alcohol on her breath.  The police subsequently detained our client in their scout car and then went to speak to her boyfriend about what had happened.  Several minutes later the police returned to their scout car and demanded that our client blow into a roadside screening device.  Our client failed that test and was brought to the police station where she provided two samples of breath into an Intoxilzyzer 8000 that resulted in readings that were over the legal limit.  At trial, we argued that our client’s Charter right to be free from arbitrary detention as well as her rights to counsel were breached.  The judge agreed with our argument that the police had breached our client’s Charter rights by detaining her for several minutes in their police car prior to making a breath demand and for not advising her of her rights to counsel before doing so.  The breath test results were excluded from consideration and our client was found not guilty. 

    R. v. B.M. – Charge stayed due to unreasonable delay

    Due to late disclosure provided by the Crown Attorney shortly before our client’s trial on a charge of driving with an excess blood alcohol concentration, our client’s trial was adjourned.  The Court was unable to accommodate the rescheduled trial for several months.  Prior to the rescheduled trial, we brought a Charter Application, arguing that are client’s right to a trial within a reasonable time under section 11(b) of the Charter of Rights and Freedoms had been breached and that our client’s charge should be stayed.  The judge agreed and the charge was stayed.  This result was the same as an acquittal.    

    R. v. V.M. – Client not guilty due to non-compliance with statutory requirement 

    Police observed our client’s car stopped partway through an intersection on a red light.  They asked him to pull over to the side and had him get out of the car.  As the police spoke to him, they smelled an odour of alcohol on his breath and noticed that he had a glass of beer sticking out of his pocket.  Officers had our client blow into a roadside screening device, which our client failed, and then brought him back to the police station to provide two samples of his breath into an Intoxilyzer machine.  Our client blew readings that were both over 160.  At trial we convinced the judge that there was a reasonable doubt as to whether the officer made a breath demand which was a statutory precondition to the admissibility of the breath test results.  Our client was found not guilty. 

    R. v. C.C. – Client not guilty due to Charter breach

    Our client was stopped by police for speeding.  While speaking with our client, the police officer detected an odour of alcohol coming from his breath and demanded that he provided a breath sample into a roadside screening device.  Our client failed the breath test which lead to the police arresting him and bringing him to the police station where he provided two samples of his breath into an Intoxilyzer 8000C which registered readings of 130.  At trial we successfully argued that the breath test results should be exclude from consideration because our client’s Charter Rights to counsel as well as to be free from unreasonable search and seizure were breached.  The judge agreed that the officer who administered the roadside breath test did not follow proper procedures when administering the test and that after arresting our client, the police delayed providing him with his rights to counsel.  The breath test results were excluded and our client was found not guilty.