ANSWERS TO QUESTIONS ABOUT IMPAIRED DRIVING CHARGES
The first step is to open a file. Once a file is opened in our office, we answer any questions you may have, we order disclosure, once it is in we review disclosure with you, and we appear in court for all of your court appearances so that you do not have to go. Please call our office for more details on how to open a file.
There are two processes you will need to address: the Criminal Code charges and the Alberta Administrative License Suspension (AALS). To learn about fighting the AALS, please see one of the questions below. The first step in defending yourself against the Criminal Code charges, is to phone our office and open a file. Once a file is opened in our office, we answer any questions you may have, we order disclosure (see below), once received we review the disclosure with you, and we appear in court for all of your court appearances so that you do not have to go yourself. When you call the office, please have with you all of the documents you were given by the police upon release so that we can open the file easily.
The law on the Alberta Administrative License Suspension (AALS) changed provincially in April 2018 and the Criminal Code charges changed federally on December 18, 2018. Both will likely have an impact on you whether you were charged before or after either of the changes. While we describe some of the changes below, you need to get solid legal advice about these matters as they can be complex.
Prior to April 2018, if a person were charged with an impaired driving-related offence, that person was given an indefinite license suspension; that means it remained in place until the charges were resolved in court. After the provincial changes came into effect in April, 2018, a person charged with an impaired driving-related offence is given a three month suspension, followed by a one year suspension. The 15 month suspension is divided into two parts because after the first 3 months, the person charged can apply for admission into the Ignition Interlock program in order to drive for the other 12 months. Unlike the prior AALS, this new one does not come to an end when the person’s charges are resolved in court. So, even if you are acquitted, if you did not appeal the AALS, you will still need to complete the balance of the 15 month suspension. It becomes more important than ever, therefore, to appeal the AALS during the 30 day appeal period.
There are too many changes to outline all of them here. It is important that you speak to a lawyer to understand the full impact these changes may have on you or someone you care about. Here, however, are some of the highlights:
The section numbers of the offences in the Criminal Code all changed (see below).
The nature of the offences has changed:
- Impaired driving (s. 253(1)(a)) became operating a conveyance while the ability to do so is impaired by alcohol (s. 320.14(1)(a)).
- Driving with a blood alcohol level over 80 mg% (s. 253(1)(b)) became operating a conveyance within two hours of having a blood alcohol level at or exceeding the limit of 80 mg% (s. 320.14(1)(b)).
The penalties have changed. These may or may not apply to you. Make sure to speak to a lawyer before making any use of the following information.
- With respect to fines, there used to be a mandatory minimum $1000.00 fine for impaired driving-related offences. After December 18, 2018, the minimum fines depend on the results of the breath tests. Refusals or failures to comply with demands for breath, bodily substances or sobriety tests, will result in a minimum $2000.00 fine (s. 320.19).
- With respect to the driving disqualification period, the mandatory minimum remains a one year driving prohibition. However, before December 18, 2018, a person convicted would have to wait three months before being able to access Ignition Interlock which would allow the person to drive for the remaining nine months. After December 18, 2018, a Court may allow a convicted person access to Ignition Interlock without any mandatory wait period, allowing the person to drive for the 12 month prohibition (S. 320.24).
An officer who has a screening device in his or her possession may stop a vehicle for a sobriety or document check and require the driver to blow into the device without having grounds even to suspect that there has been consumption of alcohol.
The penalties will vary depending on when you were charged. If you were charged before December 18, 2018, s. 11(i) of the Canadian Charter of Rights and Freedoms applies in your case. That section of the Charter guarantees that if the sentencing regime changes after you were charged with an offence, you should be able to get the benefit of the least onerous sentencing regime. If you were charged after December 18, 2018 and you provided samples of breath, the minimum fine for readings between 80 and 119 mg% will remain $1000.00. For readings between 120 and 159 mg% the minimum fine will be $1500.00. A blood alcohol level of 160 mg% or more, or any kind of refusal, will result in a minimum $2000.00 fine. There will also be a minimum one year driving prohibition upon conviction, but, post-December 18, 2018, the Court may or may not impose a mandatory waiting period before allowing access to the Ignition Interlock program.
From the time you put in a plea it will probably take, at the very minimum, two and a half months before the matter will come up again for trial. Normally, though, it will take longer. Generally, you can expect that it will take between four and seven months to get the matter to trial. It may take longer depending on a number of factors.
Disclosure includes just about anything the Crown prosecutor will be relying on at trial. It usually includes the police officer’s handwritten notes and reports, any witness statements, any collision reports, the Intoxilyzer printout etc. Disclosure also sometimes includes videotapes, audiotapes and photos.
It often depends on where the disclosure package is coming from. Usually disclosure takes between two and four weeks to arrive.
You can order it yourself. Call the Crown Prosecutor’s office ahead of time to find out what documents you might need to bring with you. You can ask our firm to order it for you. We will request the documents we know you will need and once the package is received we will review it to ensure it is complete.
If you are a youth you must appear at all court appearances unless you have filed a designation of counsel. Even then, you should know that some courts will insist on you being personally present for the first court appearance. It will not be enough to send someone else, a non-lawyer, in your place. If you are an adult and you know that the Crown is proceeding by summary conviction, as opposed to by indictment, you may be able to send someone in your place, depending on the kind of court appearance it is. Check with a lawyer before assuming that you do or do not have to be personally present. If the Crown is proceeding by indictment, you may file a designation of counsel which will allow a lawyer to be present on your behalf for most preliminary court appearances. (See question about summary versus indictable offences).
Call your lawyer immediately. If you don’t have a lawyer, call the court house and the Crown Prosecutor’s office. Be aware that, depending on the nature of the court appearance, the matter may still go ahead if there is a suggestion that your reason is not valid.
Yes. It is an offence not to go for fingerprinting.
DOES THE TIME I HAVE SPENT WITHOUT A LICENSE DUE TO THE IMMEDIATE LICENSE SUSPENSION COUNT TOWARDS THE ULTIMATE SUSPENSION I WILL GET IF I PLEAD GUILTY OR AM FOUND GUILTY OF ONE OF THE IMPAIRED, OVER .08 OR REFUSAL CHARGES?
If you were charged before April 2018, you were given an indefinite license suspension and if you were charged after that date, a 15-month suspension. There are, occasionally, but definitely not always, arguments which can be made to allow you to get credit upon conviction for the time you have spent without a license. Because credit is not certain, it is very important that you at least start the AALS appeal process within the 30 day time limit. This is also one of the reasons why it is important to get disclosure quickly so that you can get advice from your lawyer as to whether or not you have defences to the charges.
There is an appeal process that we encourage all of our clients to access. You must start an appeal within 30 days of being charged. The form you need to purchase from a Registries office is the Alberta Administrative License Suspension In Person Appeal Form (Reg 0410). It will cost about $250.00 plus a “small” handling fee (around $30.00). Once you have the form, you will need to sign it and send it to our office along with the Notice of Suspension/Disqualification and the Certificate of Qualified Technician (if you received one). Our office then uses those documents to start the appeal in front of the Transportation Safety Board on your behalf. The sooner you can send your documents to us, the better.
No. The Transportation Safety Board, the administrative body which oversees the licence suspensions will not consider the hardship that losing your license may cause you or your family. However, talk to your lawyer to see if there are other options open to you.
Some criminal code offences are called “hybrid” offences. Impaired driving, over .08 and refusal are all “hybrid” offences. This means the Crown has a choice of whether to proceed by summary conviction or to proceed by indictment. If the Crown proceeds by indictment it means that the Crown views the case as more serious than the average case. The Crown will be seeking a greater penalty than it would in a “regular” case.
There are two periods when one can access Ignition Interlock – before or after conviction. After being charged, but before any conviction is entered, you can apply for access to Ignition Interlock after a minimum period of three months. If you successfully appealed the AALS, you will not need Ignition Interlock at all before trial. If you plead guilty or are found guilty after trial, you may or may not need to wait three months before being able to access Ignition Interlock. Check with your lawyer to find out more about your options.
TALK TO A GUNN LAWYER ABOUT YOUR OPTIONS
CALL: (780) 488-4460