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What the Criminal Code Says
A DUI charge, otherwise known as an impaired driving charge, can have life-altering consequences. The range for this charge can be anywhere between an immediate driver’s license suspension to serving a jail sentence, alongside other serious consequences. Under section 320.14(1)(a) of the Criminal Code of Canada, it is an offence to operate a conveyance while a person’s ability to operate it is impaired to any degree by alcohol, a drug, or a combination of the two. Section 320.14(1)(b) creates a separate offence based on blood alcohol concentration (BAC). A person commits an offence if, within two hours after they stop operating a conveyance, their BAC is equal to or greater than 80 milligrams of alcohol per 100 millilitres of blood. This is the offence commonly referred to as ‘over 80’. Also, under s. 320.15(1) of the Criminal Code, failing or refusing to provide a breath sample in response to a lawful demand, without a reasonable excuse, is a criminal offence.
Technical Defences
Were You Driving Your Vehicle?
There are several defences to a DUI charge. First, it must be proven that you were the person operating the vehicle; simply standing near or outside a vehicle does not necessarily establish that you were the driver. For instance, if the vehicle was parked, broken down, or another person had been driving, your lawyer may challenge whether the evidence identifies you as the operator of the vehicle. If police did not witness you driving and there is insufficient circumstantial evidence connecting you to the operation of the vehicle, the Crown may be unable to prove this essential element beyond a reasonable doubt, which is the standard of proof in criminal convictions.
The Defence of Necessity
The defence of necessity depends upon the circumstances of each case. For DUI charges, this defence may work when there was no alternative other than to drive the vehicle. Was there a medical emergency? Was driving necessary to escape a threat to your life or safety? It must be noted that there must be a lack of alternative measures available for the defence of necessity to be accepted.
Testing Devices
If police rely on a roadside screening result, the defence may challenge whether the device was functioning properly or administered correctly. Issues with operation of the device or the testing procedure may affect the reliability of the result or the weight that can be placed on it.
The Proof for Impairment
The Criminal Code generally recognizes two principal alcohol-related driving offences: operating while impaired by alcohol and operating with a blood-alcohol concentration at or above the prescribed legal limit. If no roadside screening test was conducted, police may instead rely on observations such as the smell of alcohol, the appearance of an individual, driving behaviour, or other signs of alcohol consumption. The defence may challenge whether those observations were reasonable or reliable. In other words, your legal defence can argue if the officer’s observations are credible. The mere presence of an alcohol odour does not necessarily establish impairment or a blood-alcohol concentration above the legal limit. Further, it is important to have a lawyer who maintains strong attention to detail in finding inconsistencies or shortcomings in police observations and notes. Karapancev Law has a team of experienced lawyers who have spotted inconsistencies in police conduct regarding DUI charges on multiple occasions, subsequently turning them into a strong legal defence.
Charter Defences
Aside from the technical defences to a DUI charge, it is important to look at these procedures through the framework of the Charter of Rights and Freedoms. The Charter provides the broader constitutional framework that protects individuals from the exercise of unjustified state power. While police are given considerable authority to investigate impaired driving, that authority will always have limits due to the rights provided by the Charter. Questions may arise about whether a person was lawfully detained, whether a search or seizure was reasonable, or whether they were given reasonable access to legal counsel. Where police overstep these constitutional safeguards, the consequences can be significant and result in a withdrawal of charges.
Unreasonable Search and Seizure
Under section 8 of the Charter, everyone has the right to be secure against unreasonable search and seizure. Parliament enacted this as a broad protective scope for a reason, as it includes any searches or seizure which unreasonably infringe on an individual’s privacy or dignity. When police require you to provide a breath sample, they are obtaining evidence from your body. Section 8 of the Charter therefore requires that the seizure be legally authorized and carried out reasonably. Police must have the required grounds for the demand. For an evidentiary breath demand under s. 320.28, police generally require reasonable grounds to believe that an impaired-driving offence has been committed. A failed roadside screening test or observations of impairment may provide those grounds, but the circumstances supporting the officer’s subjective belief can be challenged. In short, the breath samples may have been obtained contrary to s. 8 of the Charter. The defence can then seek exclusion of the breath-test results under s. 24(2) of the Charter. Without those results, the Crown may have difficulty proving a DUI charge.
The Right To Counsel
Everyone has the right to counsel as guaranteed under section 10 (b) of the Charter. No matter the seriousness of the offence, this right must be provided to an individual in a reasonable time frame. The onus is on the police or state to facilitate this right. In R. v. Stewart 2025 ONCJ 446, the accused repeatedly asked for internet access to find private counsel. Police denied that access and offered an outdated lawyers’ directory instead. The court found that the police failed to act with reasonable diligence and breached her s. 10(b) rights.
Our firm has also successfully withdrawn criminal charges of ‘over 80’ through this defence. In R . v. A.E, after careful review of disclosure, our defence team found that the police breached the accused’s right to counsel, thus constituting a withdrawal of the charge. Our team has also successfully challenged ‘over 80’ charges where police delayed reading rights to our client and questioned him before informing him of his right to counsel. In short, if you are attempting to exercise your right to counsel, the breach of this right can undermine the charge itself. This involves the counsel of your choice that you wish to contact.
The Right to Trial Within A Reasonable Time
Everyone charged with an offence has the constitutional right to be tried within a reasonable time under s. 11(b) of the Charter. This protection applies to DUI charges just as it does to other criminal offences and is intended to prevent an accused from being left with unresolved criminal proceedings for an unreasonable and prolonged period. In R. v. Jordan, the Supreme Court of Canada established presumptive ceilings for determining unreasonable delay. Once the Jordan ceiling is exceeded, the delay is presumed unreasonable, and the Crown must establish exceptional circumstances capable of justifying this delay.
Our firm has successfully withdrawn charges relating to impaired driving and ‘over 80’ through a section 11(b) defence. In R v. H.J, our team filed an 11(b) Charter Application for the unreasonable delay of trial for an individual whose breath tests were found above the legal limit. The charges were dropped due to the unreasonable delay.
Discrimination Within Police Investigations and Proceedings
Section 15 of the Charter guarantees equality without discrimination, including based on race. If racial bias or profiling influenced how a DUI investigation was conducted, it may form part of a Charter challenge to the police conduct. This could include excluding evidence through section 24(2) of the Charter.
Conclusion
A DUI charge is a serious and life-altering event. We recognize the drastic weight that a criminal charge carries and approach every case with consideration for both the legal consequences at stake and the individual experiences behind them. Please feel free to contact our legal team so we can help with next steps to make this process easier for you.
