Most people get charged with both Impaired Driving and Over 80. In order to avoid a criminal record, you must be found not guilty of both charges. Where the Crown proves both charges, you can only be convicted and sentenced for one because they are so similar.
However, you can be convicted and sentenced for both Impaired Driving and Refusal.
The minimum punishment for Impaired Driving, Over 80 or Refusal is $1000 fine. This amount may be increased where there are aggravating features such as high readings, an accident or a dated prior conviction. A mandatory Victim Fine Surcharge of 30% will be added to any fine.
The minimum driving prohibition for each of these offences is one year with the ability to apply for admission into the Ignition Interlock Program, typically after three months. The Judge has the discretion to increase the length of driving prohibition and eligibility for the interlock where there are aggravating circumstances.
Administrative Licence Suspension (ALS)
Every person charged receives an administrative licence suspension (ALS) from the Province of Alberta which suspends your licence until the file is concluded in Court. The only way to drive while you wait for your Court date is to successfully appeal the suspension. In order to appeal, you must purchase a non-personal appeal form from an Alberta Registry Agent and file it within 30 days of the date you were charged.
We advise all of our clients to appeal the ALS. Once the form is filed the Transportation Safety Board (TSB) will provide disclosure which is normally much earlier than we will receive it from the Crown. Once we receive disclosure we determine if an appeal is worthwhile. The TSB is not a Court and many of the arguments which are successful in Court will not be successful on the appeal. Because of this we often advise our client not to proceed to argue the appeal once disclosure if received. If we do not proceed to argue an appeal there is no additional cost to you.
SECOND AND THIRD OFFENDERS
If you have a previous related conviction and the Crown relies upon a Notice of Intention to seek greater punishment, the mandatory minimum punishments increase. For second offence the minimum sentence is 30 days in jail which may be served on weekends. For a third offence the minimum is four months in jail which cannot be served on weekends. The length of the driving prohibition and eligibility for the Interlock program also increase on subsequent offences.
LICENCE SUSPENSIONS IF CONVICTED
In addition to the driving prohibition given in Court, the Province of Alberta will suspend your licence and you will be required to meet reinstatement conditions prior to be allowed to drive again. The provincial suspension starts the day you are found guilty and runs alongside the criminal prohibition.
For a first offence the suspension is one year and you can typically have an Ignition Interlock Device installed after the first three months. This allows you to begin driving again on a conditional licence. In order to get your licence back without conditions, you will need to maintain the Interlock in your vehicle for a period of 12 months, pay reinstatement fees and meet whatever other conditions are imposed upon you.
For a second offence within five years, the Province will suspend your licence for three years. If you receive a third conviction within 10 years, the Province will suspend your licence for five years. These suspensions run at the same time as any Court ordered prohibition and you may still be eligible for a conditional licence/interlock as allowed by the Judge and decided by the Province.
CARE OR CONTROL
You can be found guilty of a criminal offence even if you were not driving. The Criminal Code deems a person to be in care and control of a vehicle where they are found to be in the seat normally occupied by the driver. However, if the Judge believes that you were not in the driver’s seat for the purpose of driving and there was no realistic risk that the vehicle could become dangerous, a criminal offence has not been committed.
If you are convicted of care and control the punishments are the same as for driving.
If the police did not take your fingerprints when you were charged, they will have given you an Appearance Notice or Promise to Appear form which requires you to attend for fingerprinting prior to your first court appearance. Most police forces will allow you to do your fingerprints on an earlier date if you bring your paperwork with you, and we recommend that you do this if possible. Once the fingerprints are done, we can usually move your court date up so that we can set an earlier trial date and reduce the time you spend walking under the ALS suspension.
PROOF OF IMPAIRMENT
There are essentially two kinds of impaired cases: those where the police used an Approved Screening Device (ASD) to require a breath sample at roadside, and those where they skipped that step. Where the police require an ASD breath sample in order to form their reasonable grounds to arrest you for impaired driving, it is very rare for a trial Judge to convict you of impaired driving. On the other hand, where the police arrest you without using the ASD, they will generally testify to stronger indicia of impairment and it will be a live issue at trial whether they had sufficient grounds to arrest and make the breath demand. For more information about impaired driving and impaired driving indicators, please visit our Driving Offences page.
In addition to the statutory defences available for each charge, most of the defences in these cases involve breaches of your Charter rights. This is a very complicated area of law, but the main use of Charter Arguments is to demonstrate that your rights have been breached and then persuade the Judge that the evidence should be excluded as a result. Because this area of law is not easily explained, we recommend that you schedule an appointment with our office to discuss how it might apply to your case.
This charge depends on whether your Blood Alcohol Level (BAC) exceeded 80 milligrams of alcohol in 100 milligrams of blood. Usually the Crown will rely on a Certificate of Analyses prepared by a Qualified Technician (QT) rather than having the QT come to court and testify. There are a number of procedural hoops that the Crown must prove in order to obtain a conviction in this manner, including whether there was a valid demand for breath samples, whether the samples were provided pursuant to that demand, whether the first sample was taken within two hours of the time of driving, whether the two samples were taken at least 15 minutes apart and whether they served you with the certificate from the QT prior to the trial. The Crown can also attempt to prove their case by calling the QT as a witness, or through certificates relating to blood samples. Blood sample cases are particularly complicated, so you will need to discuss those with us in person.
REFUSAL OR FAILURE TO PROVIDE BREATH SAMPLES
In order to convict for these offences, the Crown must prove that a valid demand was made to you, and that you either deliberately refused to provide a breath sample or deliberately failed to do so. Failure cases usually involve some attempts by you to blow, which are not successful. In many cases this may be because the instrument was malfunctioning or not being operated properly. We are certified to use all of the breath testing instruments in Alberta, so we are able to find out if there is some other reason why you could not provide a sample. If you are asthmatic or otherwise have limited lung capacity, that may provide a defence as well.
WHY YOU SHOULD HIRE US
Roadlawyers is one of the top impaired driving firms in Western Canada. We have successfully defended over 4000 impaired cases over the last 29 years. Tim Foster and Katherin Beyak have devoted their practices almost exclusively to impaired driving cases for the last 20 years. We never turn down any impaired driving cases and our success rate is over 95%. We have several fee options, from $5000 to $15000, depending on which lawyer you retain. Tim Foster also offers a money back guarantee for $25000, whereby if you are not satisfied with his services at the end of the trial, he will refund all of your fees except the initial retainer amount of $3150. We work together as a team to prepare our cases, but the lawyer you retain will be the one who conducts your trial. Many of our cases are referrals from other people in the justice system, such as judges, police officers, sheriffs, court clerks, Crown prosecutors and other lawyers. If you know someone in the criminal justice system, ask them who they would recommend. We are confident that it will be us.
THINGS YOU SHOULD DO RIGHT AWAY