Most people get charged with Impaired driving and with Over 80. Although these are two separate charges, they are similar enough that a case named Keinapple says you can only be convicted of one, even if the Crown is able to prove both of them. In order to avoid any punishment,
an accused person must be found not guilty of both charges. The Keinapple rule does not apply to Impaired driving and a refusal charge, so it is possible to be convicted of both those charges if you lose at trial.
Each of these charges (Impaired, Over 80 and Refusal) carry minimum punishments of $1000 fine, a 30% Victim Fine Surcharge, and a One year driving prohibition for a first time offender. These are minimum punishments and may be increased if there are aggravating circumstances, such as higher breath test readings, an accident or a previous conviction.
Administrative Licence Suspension (ALS)
Every person who is charged with one of these offences in Alberta is subject to an ALS suspension. This suspension is in effect from the date you are charged until your criminal charges are concluded. IF YOU ARE CONVICTED, NO CREDIT IS GIVEN FOR ANY TIME SERVED UNDER THE ALS SUSPENSION. If you plead not guilty and have a trial, this may take up to a year, depending on which part of Alberta your case is in. The only way to avoid the ALS suspension is to file an Appeal, which involves purchasing an appeal form from a vehicle registry office and filing it with the Board within 30 days from the date you are charged. We recommend that each of our clients purchase a NON – PERSONAL APPEAL form immediately, which costs $125
plus the registry surcharge, usually $15, and bring it to us to file on your behalf. If we file this appeal we will generally receive disclosure of the police file much quicker than through the Criminal process, so that alone makes purchasing the Appeal form worthwhile. These appeals are heard by a Board, who does not strictly apply criminal rules, so there are very few arguments which will be successful. Once we review the disclosure, we will be able to tell you whether it is worthwhile proceeding with the appeal or whether it should be abandoned. If we abandon the appeal, there is no charge for our services regarding the appeal. If you decide to proceed with the appeal, there is an additional charge.
SECOND AND THIRD OFFENDERS
The Criminal Code provides that if you have a previous conviction for one of these offences and get convicted again, and the Crown serves you with a Notice of their Intention to seek Greater Punishment, you must receive a minimum jail sentence of 30 days for the second offence and 4 months for a third or subsequent offence. The 30 days sentence may be served on weekends, but the 4 month sentence may not.
LICENCE SUSPENSIONS IF CONVICTED
The Province of Alberta will automatically suspend your driver’s licence for a minimum period of 1 year for a first offence, 3 years for a second conviction within 10 years, and 5 years for a third conviction within 10 years, STARTING ON THE DAY ON WHICH YOU ARE CONVICTED. These suspensions run concurrently with the driving prohibitions ordered by the Court. If you participate in the Ignition Interlock Program, you may be able to obtain a Restricted Driver’s Licence and be allowed to operate a motor vehicle which is equipped with an Ignition Interlock Device. You have to pay to have this device installed and also pay a monthly rental fee.
CARE OR CONTROL
A person can be convicted for being Impaired or Over 80 even if he is not driving, if he is found to be in care or control of the vehicle. If you are found in the seat normally occupied by the driver, you are deemed to be in care or control unless you can prove to the court that you were not intending to set the vehicle in motion. Even then, you can still be convicted if you did something with the vehicle or its fittings which gave rise to the risk that the vehicle could
unintentionally be set in motion. The punishments for a conviction for care or control are the same as for operation. Many people have been acquitted where they are sitting in an immobilized vehicle keeping warm while waiting for a tow truck. Sometimes people who are sleeping in their vehicle are acquitted as well, depending on the circumstances. These cases are very complicated and must be discussed with us as soon as possible. You can be convicted of care or control even if you are charges with operation.
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 essential 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 a complete list of the usual indicia, go to our detailed discussion of the offence of impaired driving.
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, but the main use of Charter Arguments is to show that your rights have been breached and then persuade the judge that the evidence should be excluded as a result. If the police stop you for an improper reason, that may be an arbitrary detention. If the police fail to advise you of the true reason for your detention, that may be a breach of your charter rights. If they interview you and require you to perform sobriety tests or blow in an ASD without being advised of your right to counsel, that is a charter breach which prevents that evidence being used to prove impairment at trial. If the police require you to exit your vehicle and search you before locking you in the back seat of the police car in order to blow into the ASD, that may breach several of your charter rights and may result in exclusion of all of the evidence at trial. If the police do not have reasonable grounds to believe that you are impaired, but arrest you and make a demand for breath samples anyway, that will be a major charter breach. If the police arrest you but do not advise
you of your right to counsel, or fail to give you a reasonable opportunity to consult with counsel, that will be a charter breach that may result in exclusion of the breath test results. If the police video tape you while you are using the toilet in the jail cell, that may be a very serious charter breach. If the police do not release you within an hour or two of providing the breath samples, that may be a breach of your charter rights which may result in exclusion of the breath test results. Once the matter is set for trial, if the police have destroyed some of the evidence, such as video tapes, or fail to disclose evidence in a timely fashion, that may be a charter breach. Finally, if the Crown cannot provide you with a trial date within a reasonable time, that may result in a stay of proceedings.
This charge depends on whether your Blood Alcohol Level 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 2 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
We are 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 has devoted his practice for almost exclusively to impaired driving cases for the last 20 years. We never turn down any impaired driving cases and
Tim Foster’s 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
Write out a statement including everything that was said or done by you and the police from the time they stopped you till you were released. The more detail the better our chances of winning your case.
After the statement in your own words, fill out our questionnaire which asks a number of specific questions. Again, the more detail the better.
Purchase the NON-PERSONAL APPEAL form for the ALS suspension, sign it and bring it to our office.
Bring all of the papers that the police gave you.
Go and do your fingerprints early if you can.
Come and retain us as soon as possible. We require an initial retainer of $3150 which will be applied to your trial fees.