Impaired Care & Control

The police may have found the accused sitting, stopped in a motor vehicle, or even standing near the vehicle.

Upon speaking to them the officer determined that they had the care or control of the vehicle. The officer formed the opinion that, their ability to drive was impaired due to an alcoholic beverage or drug. 

The officer subsequently had the grounds to arrest the driver and demand a breathalyzer test.

Impaired driving is:

“Having the care or control of a motor vehicle, while the driver’s ability is impaired due to the consumption of an alcohol or drug”

Being impaired doesn’t necessarily mean drunk or intoxicated.

Impaired driving only means that, the driver’s ability to operate a motor vehicle was changed or impaired, due to the consumption of an alcohol or drug.

Many times people thought that they shouldn’t be driving, and thought they were doing the right thing:

• by not driving
• trying to “sleep it off”
• waiting for the effects of the alcohol to dissipate
• while sitting in their vehicle

Criminal courts believe that if someone is sitting in a motor vehicle, they have the care and control of the vehicle. If their ability to drive is impaired by a drug or alcohol, then there is a risk to the public.

For the police and the crown attorney impaired driving care & control can be proven by:

• use of the vehicle, or
• the vehicle was able to be put in motion,
• that the driver intended to drive the motor vehicle
• the driver had the ability to drive and operate the vehicle

Showing that the accused’s ability was impaired by physical symptoms, e.g. unsteady on feet, slurred speech, strong smell of alcohol with results of a breathalyzer test would be used as evidence.

The accused thought they were doing the right thing by sleeping in the vehicle rather than driving while impaired.

Everyone is entitled when charged with a criminal offence to defend themselves in court. You may feel that if the police have arrested you for impaired driving that you’re automatically guilty, which is wrong.

For every impaired driving charge there are issues and defences available.

Impaired driving care and control defences can include issues such as:

• right to speak with a lawyer in privacy
• have the police done everything properly
• right to have your trial in a reasonable period of time
• collection of evidence against the accused. e.g. breathalyzer tests
• have documents been properly submitted and prepared at the court
• can the prosecution prove the case beyond a reasonable doubt

There are defences to impaired driving charges, and at Charitsis Law we know the law on drinking and driving.

The penalties for impaired driving care & control are serious and are the same as if you were arrested for impaired driving;

• a criminal record for life
• jail for serious or repeat offences
• a fine of $1000 to $2000 dollars
• immediate 90 day licence suspension
• upon conviction an additional one year license suspension
• driver licence reinstatement fees of 600 dollars
• mandatory Ignition Interlock installed in any vehicle
• insurance rates of over $10,000 per year for 5 years
• possible loss of employment

A conviction for impaired driving can cost over fifty thousand (50,000) dollars in increase insurance rates, fees and fines over five (5) years.

Breathalyzer tests must be done properly and legally. If there is a mistake or your rights have been violated, the proper remedy for the judge to do, is to dismiss or “stay” the charges

When the police collect evidence like a breathalyzer test, there are rules that they must follow.

Breathalyzer tests have to be done properly and legally. Where evidence has been “improperly collected” in a criminal matter it may provide a defence for the accused.

If the police are going to use the results of a breathalyzer test to prove an impaired driving care & control charge, the tests have to be:

• taken within time limits,
• by a qualified breathalyzer technician,
• usually within two (2) hours of the time of the offence,
• properly served notice on the accused
• properly reported to the court.

When the case comes to trial, either the breathalyzer technician has to come to court, or the arresting officer to prove that the breathalyzer readings and notice were properly served on the accused.

When it comes to breathalyzer tests the police have time limits, rules and procedures that must be followed.  Where the police have have made errors or improperly conducted a breathalyzer test the charges can be dismissed.

If there is a mistake or your rights have been violated, the proper thing for the judge to do is to dismiss or “stay” your charge.

The accused did not received their right to counsel or a lawyer.

In Canadian law, the Canadian Charter of Rights and Freedoms says that:

• if you are charged with a criminal offence then it is your right to speak to a lawyer
• the call must be done as soon as possible.
• you have the right to speak to the lawyer in privacy without anyone or a police officer being present.
• you have the right to speak you a criminal lawyer of your choosing, and
• the police must make reasonable steps to put you in contact with that lawyer.

Where your rights as a Canadian citizen have been violated, the proper course of action for the judge hearing your case is to dismiss or stay (withdraw) the charges.

As a Canadian citizen if you are charged with an offence in Canada you have a right to have your case heard by a judge within a reasonable period of time.

The time that is considered reasonable for a criminal matter is about eighteen months (18) months.

If your case takes more than eighteen months (18) months to come to trial as your lawyer I can file a complaint to the judge to have your charge dismissed.

This is called an 11b Application under the Canadian Charter of Rights and Freedoms.

The police officer is under strict rules for arresting a person for impaired driving.

The officer has to properly:

• place the driver under arrest
• read the driver your rights to counsel
• read the driver a breathalyzer demand
• ensure the driver understands what they have been told
• ensure that the breathalyzer test is taken as soon as possible
• ensure that all evidence is collected properly and legally
• ensure that the case is prepared for trial and that all documents are properly prepared

This is partial list of requirements upon the police in arresting and charging the accused; there are many more issues that can arise at trial.

The testimony of the police officer a impaired driving care and control trials can be in issue.

Many times police officers are able to write out the report, but when the case comes to trial months later the officer may have issues regarding what actually happened.

In a trial for impaired driving, the police have to prove that you are guilty beyond a reasonable doubt. This means that the police have to prove to the judge that you are 100% guilty of the charge.

For example should the judge say that they are 90% sure the accused committed the offence but they have a 10% doubt in their mind, then the judge should dismiss the charge.

Where there is a tie, a tie goes to the accused.

In trial for impaired driving, the police and prosecution have to prove these five (5) things:

• where did the incident happen?
• what happened, that an offence was committed
• who did the deed, the identity evidence, who did it?
• when did the incident happen? there are time limits
• how did the incident happen?

If the police and crown attorney cannot prove any of these issues, the case can fall apart and the charges maybe dismissed or withdrawn.

Want legal advice or like to speak to a lawyer? The first step is to give us a call at 416-731-7113.

There is no fee or obligation to call and speak to us.  The discussion is held with complete privacy and confidence with the lawyer.

The lawyer will be able to give you an opinion about your case, and tell you:

• possible defences to the charge
• legal arguments in your case
• what you can do to help your case
• what the cost to defend the accusation would be

Where you decide to retain our services we will invite you to meet in our Toronto office or have a face to face Zoom online meeting.

In that meeting we’ll discuss the case in detail, plan your defence and arrange for the first court date.

We ask for a reasonable deposit upon retaining our services of 10 to 25 percent.