Six elements that must be proven before you can be found guilty of impaired driving in Ontario:

1. You identity
2. As a driver
3. Of a motor vehicle
4. As a driver operating a motor vehicle in a public place while
5. Your blood alcohol was over one of the prescribed limit by
6. the introduction of alcohol into the body

Ten items your Ottawa defence lawyer wants to know:

1. What your schedule was before the arrest.
2. What you drank and how much.
3. Described you observations of the officer.
4. Why the officer says he or she stopped you.
5. Were you asked to take roadside tests?
6. The results on roadside tests.
7. The results on roadside tests.
8. What you said to the officer.
9. The results of any breath or blood tests.
10. The names and contact information for any witnesses to your arrest.
11. How long it took from the time of your arrest to the time the breathalyzer was administered.

Three ways your defence lawyer can discredit the arresting officer’s testimony:

1. Inconsistent statements by the officer or officers involved in the arrest.
2. Failure on the part of the police officer to recollect your case.
3. Failure to make important notations in the officer’s duty to book notes, for example failure to record the time of the arrest and the time of breathalyzer.

Three secrets the Crown Attorney does not want you to know:

1. The Crown does not have all the witnesses available to prove the case.
2. The Crown has exculpatory evidence which would prove your innocence.
3. The Crown has evidentiary problems in proving your blood alcohol level.

Four things that are crucial to your defence:

1. An excellent investigation of the facts.
2. Skillful cross-examination.
3. A thorough understanding of your Charter Rights.
4. An experienced criminal defence lawyer.

Five ways to challenge the results of the alcohol tests:

1. Prove the officer lacked a reasonable suspicion that you were violating the law.
2. Prove that the officer lacked probable cause to arrest you or demand the roadside tests.
3. Prove that the officer failed to inform  you of your rights concerning a breath or blood test.
4. Prove that the officer lacked probable cause before he arrested you and before he required you to take a blood or breath test.
5. Prove that the officer failed to tell you that you have a right to remain silent and to consult a lawyer.

Two considerations before deciding to please guilty to impaired driving:

1. How strong is the Crown’s case against you?
2. What will the outcome be of an impaired conviction?

Four pretrial motions that your defence lawyer should file, and the danger to you if they are not:

1. Motion to exclude evidence on the ground that you were unconstitutionally stopped.
2. Motion to exclude evidence on the grounds that there was an unconstitutional search and seizure.
3. Motion to exclude statements on failure to give advise you of your right to remain silent and your right to consult a lawyer.
4. Motion for disclosure of all Crown evidence.

If these motions are not filed by an experienced criminal defence lawyer, your case may not be dismissed when it should have been.  Plain and simple.

Seven defence tactics in pre-trial motions:

1. Challenge the constitutionality of the stop.
2. Challenge the constitutionality of the administration of the roadside tests.
3. Challenge the constitutionality of the probable cause to arrest.
4. Challenge whether the appropriate Charter warning were administered.
5. Challenge how the roadside tests were given.
6. Challenge the use of any blood or breath test.
7. Challenge the constitutionality of any search and seizure.

Charged with impaired driving in Ottawa, Smiths Falls, Perth Ontario, Cornwall or other Ontario location?  A criminal defence lawyer at Auger Hollingsworth would be pleased to review your case for you.  Contact us here or by telephone at 613 233-4529.

On December 18, 2008 a 29 year old driver was stopped in B.C. for showing symptoms of alcohol impairment.  When the driver was asked to wait several minutes, the driver ran from the scene.

Not too long after, the police dog service found the driver hiding in a nearby residence.  The male was arrested and charged not only for Refusing to Provide a Breathe Sample, but also for Escape Lawful custody, and Break and Enter.

All three charges could have been avoided if the driver had proper legal advice. Being charged with impaired driving and related criminal offences like Over 80 or refusal to blow can cause anxieties, so we have made it our personal mission to inform the public about Drinking and Driving Charges.

The Ottawa lawyers at Auger Hollingsworth have developed a new book called “Fighting Drinking and Driving Charges” to answer your questions and to equip you with the knowledge and information you need.  The consumer guide is free for a limited time by clicking here.

First-time convicted impaired drivers who used to face a license suspension of 12 months, may soon be back on the road in three months.  However, to be eligible for the shortened suspension, they must first plead guilty.

They must also agree to install an ignition interlock or breath alcohol ignition interlock device in their vehicle for nine months. The breath-testing devices require the driver to provide a breath sample. The vehicle will not start if the driver’s blood alcohol concentration is over .02.

While Ottawa criminal defence lawyers support the reduction of the penalty for first time offenders and support the law’s focus on rehabilitation, we are concerned that providing a legislated incentive for a guilty plea will encourage innocent people to plead rather than face the risk of a trial.

The new regulation does not actually come into effect until early August, but first-time impaired drivers already in the criminal system are able to plead guilty and defer sentencing and the finding of guilt until after August 3.

After November 1 of this year, anyone facing charges of impaired driving will have to plead within 90 days of the charge in order to avail themselves of the new incentive.

According to a Crown memorandum, there will likely be large number of people who opt to employ the new provision because 80 per cent of individuals charged with drunk driving are first-time offenders

Have you been charged with impaired driving? Criminal defence lawyers at Auger Hollingsworth can give you the legal advice you need and effectively represent you. Do not plead guilty to impaired driving, or over 80, without getting legal advice first. Contact a criminal defence lawyer at Auger Hollingsworth at 613-233-4529 or at info@ottawalawfirm.ca Visit us online at: www.criminaldefenceottawa.ca

Criminal defence lawyer Richard Auger has defended many clients charged with motor vehicle offences, including impaired driving, driving “over 80″ and refusal to provide a breath sample.

Call us at 613- 233-4529 so we can use our experience to help you.

There is a lot at stake…

If you are convicted of a drunk driving offence, the penalties are serious:

• Minimum one-year driving prohibition
• Fine ranging from $600 to $2000
• Ignition interlock for at least one year (rental cost about $1200 annually)
• Mandatory attendance at a remedial program at a cost of about $500 prior to licence reinstatement
• A criminal record

In addition, you will likely suffer a significant increase in your car insurance premiums after conviction.

If your blood alcohol was more than double the legal limit,  or you had a collision, someone was injured or you have a previous conviction for a similar driving offence, the repercussions may be much more severe.

You could face a jail sentence and a life-time driving suspension.

How can Auger Hollingsworth help?

There are several defences that may apply depending on circumstances.

We know how to review the disclosure (the Crown’s evidence, primarily from the police) to determine if your Charter rights were violated during the process leading up to your arrest.  We will look at:

• the reason you were stopped
• if and how the road side screening test was administered
• whether and how you were given your rights to counsel
• whether the timelines prescribed by the Criminal Code were followed

…among other things.

We will consider whether there is evidence that you were not in fact over the legal alcohol limit.

We will consider whether you were actually driving, or in care or control, of the car.

Once we have an understanding about the weaknesses in the Crown’s case, we will discuss your options with you.  We can show the Crown the problem with the case and encourage a favorable resolution for you, including that the charges be withdrawn.

We are always prepared to defend you vigorously at trial.

How Can You Help Yourself?

It is tempting to tell your family and friends the “whole story” leading to your arrest.  Don’t.  Keep the details to yourself and your lawyer.

Make detailed notes of what happened of the events leading up to your arrest and provide them to your lawyer.  Try to make these notes as soon as possible after you are released from the police station while the events are still fresh.  At the top of these notes write the title “Private and Confidential Notes for the purpose of obtaining Legal Advice”.

In your notes, record:

• what you ate and when (start with breakfast and work through the day)
• where you were and at what time
• what, if anything you had to drink
• the size and strength of those drinks
• how you paid for anything you consumed
• who was with you
• what route(s) you took
• how you were stopped by the police
• did you have a cell phone available
• what the police said to you
• what you said to the police
• how the road side breath test was administered
• how the breathalyzer was administered
• what was said to you about your right to obtain legal advice
• who you contacted for legal advice, and
• any other details prior to your release from the station

Do not share the notes with anyone, but bring them with you when you meet with your lawyer.

Keep all receipts and credit card statements.

The Ottawa Citizen reports that a convicted impaired driver who greeted police at her door naked after leaving an accident scene may receive a jail sentence if the assistant Crown attorney’s submissions are accepted. The accident took place on Highway 174 in November 2006.  The defence lawyer was opposing a jail sentence.  The woman, who was also charged with leaving the scene,  will learn her fate in September 2009.

It is not easy to pick an impaired driving lawyer when you are not a lawyer yourself. In many ways, they all look the same. But are they? Here are some facts to consider:

Fact #1

Not all lawyers have the same experience. A lawyer may have a great resume and might have argued many high profile cases. But, if your lawyer does not have specific experience fighting impaired driving charges, you should keep looking. The law surrounding impaired driving, over 80, and related charges is technical and constantly changing. You need someone who is current on the law.

Fact #2

Just because a lawyer advertises that he or she is a criminal lawyer, that does not mean that he or she has defended any, or many, impaired driving or related charges. You must ask!

Fact #3

Not every lawyer who takes impaired driving cases is willing to take them to trial. Some lawyers are able and willing to try to get you a good deal for your charges. However, if no deal is offered, they will encourage you to plead guilty rather than running a trial for you. While sometimes a guilty plea makes sense, you should never feel like you don’t have a choice.

Fact #4

The Legal Aid list, or an internet lawyer directory service, or the yellow pages is not the way to find the best impaired driving lawyer for your case. None of those listings do any review to ensure that the lawyer listed has experience in the particular area. There is no substitute for your own research and for interviewing the lawyer.

“Brenda has our trust and respect. We highly recommend her.”

“Brenda Hollingsworth is competent, compassionate and professional. She told us what we needed to know, not necessarily what we wanted to hear. Brenda has our trust and respect. We highly recommend her.”

F.H., Business Owner
Ottawa

Make sure your criminal defence lawyer protects your constitutional rights when you are charged with a criminal offence.

You have:

1. the right to remain silent.
2. the right to a lawyer, including the right to consult that lawyer privately.
3. the right to a fair trial.
4. the right to a trial without undue delay.
5. the right to a trial in English or French.
6. the right to know why you have been arrested.
7. the right not to testify against yourself.
8. the right to an interpreter in court.
9. the right to an impartial tribunal.
10. the right to reasonable bail.
11. the right to be tried by a judge and jury (in most cases).
12. the right to be presumbed innocent.

You cannot be:

1. detained arbitrarily (except in some limited circumstances).
2. detained without being brought before a justice within 24 hours.
3. subjected to an unreasonable search of your person, your home or your car.
4. charged with an offence on the basis of racial profiling.
5. charged tried twice for the same offence.
6. be convicted of an offence that is overly broad.
7. be convicted of an offence that is sexist, racist or otherwise discriminatory.

What if Your Charter Rights are Violated?

1. Evidence obtained by the Crown in a way that violates the Charter may be excluded from use against you at trial.
2. If you are charged with an offence that violates the Charter, the offence and the charges with it, may be struck down.
3. If your trial was delayed too long the charges against you could be stayed.
4. If the violation of your Charter rights brings the administration of justice into disrepute, your charges may be stayed.

Are these Charter remedies automatic?

1. No. Charter remedies are usually only granted where the criminal defence lawyer asks for them.
2. Your criminal lawyer must carefully review the file for Charter violations.
3. Your criminal lawyer must prepare, file and actually argue Charter motions before the trial judge.

• Make sure your criminal defence lawyer knows the Charter and uses it to your full advantage.
• Ask your criminal defence lawyer what motions he or she will bring on your behalf.
• Ask your criminal defence lawyer whether he or she regurlarly bring Charter motions
• Ask your criminal defence lawyer whether he or she regularly wins Charter motions.

If you have been charged with a criminal offence, make sure you have an experienced criminal defence lawyer who knows how to enforce your Charter rights.  Contact a criminal lawyer at Auger Hollingsworth by clicking here or by calling 613 233-4529.

As we approach the last weekend before school starts in Ottawa, we all want to relax and enjoy the outdoors, the BBQ and maybe a few beers.  Remember the end of August and the beginning of September are two very busy months for impaired driving charges in Ottawa.  Need information about impaired driving, driving over 80, drunk driving or other related charges?

“We all want to thank you for your tremendous effort you are making to help us; there is no way we are able to show our appreciation. However, as one of our members said, we pray for you.”

C.G.
Ottawa