Impaired Driving | Drug Offences | Assaults
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The Canadian Charter of Rights guarantees everyone a full and fair defence as well as the presumption of innocence. Every person has the right to silence. This means that it is always the burden of the Crown to prove guilt beyond a reasonable doubt. You do not need to prove your innocence.
Every person also has the right not to be denied reasonable bail without just cause. If you are being detained by the police you have the right to be released unless the Crown or police can show cause why that should not occur, and this must happen within 24 hours of your detention. To ensure you receive the benefit of all of your rights, consult with a lawyer.
At Double Diamond Law, we represent clients for all forms of criminal and quasi criminal charges including Provincial regulatory offenses. So, whether it is a serious criminal charge or speeding ticket, you can receive representation from our firm. Some of the more commonly occurring charges in the Whistler and Squamish area include impaired driving, drug offences and assaults.
As your agent, we can appear in Court, so you don't have to.
The criminal offence of impaired driving is often referred to as “driving under the influence” or “DUI”. Specific offences associated to impaired driving are a charge of driving with a blood alcohol level in excess of 0.80, impaired driving, and refusing to provide a breath sample.
The consequences of a conviction are serious and the penalties continue to increase. As of April 2010, you will lose your driver's licence for at least one year, have a criminal record, and be fined a minimum of $1,000 plus a $300 victim fine surcharge. In addition, the B.C. Superintendent of Motor Vehicles will require you to complete the Responsible Drivers Program before reissuing your licence. This costs about $900.
Then, for your first year of driving after your licence has been reinstated, you will have to drive with an ignition interlock device (breathalyzer) in the vehicle. This costs about $1,800.00 to install and use for one year. Finally, you will be required to pay the Driver Risk Premium for three consecutive years. For a first, criminal code driving offence, this is $1,086 per year. If the incident involves an accident, your insurance will not likely cover any vehicle damage or personal injury claims. In addition, penalties increase and there are minimum jail sentences if you already have a conviction for an impaired driving offence on your record. Further, penalties will likely increase if anyone has been injured as a result of driving while impaired.
90-day Prohibitions - You only have 7 days to challenge these prohibitions.
Immediate Driving Prohibition
In cases where a person has no prior record of impaired driving, there was no accident, and the level of impairment does not appear high, the police have the discretion to issue an Immediate Driving Prohibition, instead of proceeding with criminal charges. This sanction is not criminal and will not result in a criminal record. It is handled through the office of the Superintendent of Motor Vehicles. If you do not challenge this prohibition in any way, then you will be prohibited from driving in BC for 90 days (check for reciprocity in other jurisdictions before driving in other places during this time). The process to review, or challenge, this prohibition is simple to commence and, since you only have seven days in which to request a Review, you must act quickly. You can do so at any Motor Vehicle Branch (above McDonalds in Whistler). For a better understanding of the IRP, you may call us for an explanation.
Administrative Driving Prohibition
In almost all cases in which you are accused of having blown over the legal limit (.08) or failed/refused to provide a breath sample, the police will serve you with a 90-day Administrative Driving Prohibition (“ADP”). This sanction represents a completely separate process from any criminal charges, and it is handled through the office of the Superintendent of Motor Vehicles. If you do not challenge this prohibition in any way, then you will have 21 days in which to drive before the prohibition begins. The process to review, or challenge, this prohibition is simple to commence and, since you only have seven days in which to request a review, you must deal with this quickly. You can do so at any Motor Vehicle Branch (above McDonalds in Whistler). For a better understanding of the ADP, you may call us for an explanation.
There are several criminal offences arising from the possession or trafficking of drugs and controlled substances. Charges can range from simple possession, to possession for the purpose of trafficking, to trafficking, and to production of, a particular drug.
The seriousness of the offence is determined by factors such as the quantity of the prohibited substance involved and the type of drug involved. For example, possession of psilocybin (“magic mushrooms”) is generally considered to be less serious than offences involving drugs such as cocaine and ecstasy.
What You Should Do: The outcomes of a large percentage of these cases revolve around the legality of the search in which the substance(s) was(were) discovered. Even if the substance is an illegal one, the prosecution may not be able to use the evidence due to a breach of your rights. Thus, always talk to a lawyer before engaging in any discussion with the police regarding a drug offence. If the police indicate that they are searching you, your vehicle, or your premises pursuant to a warrant, ask to see the warrant to verify that the area searched is the place described in the warrant. If in doubt, ask to speak to a lawyer.
With marijuana soon to be declared legal and regulated by the various levels of government, a new set of rules will apply to its use and what activities will be considered illegal. New laws addressing driving while impaired by marijuana will be declared in force at the same time. Watch this section of our site for updates as to how these new laws will be applied and their effects.
Marijuana consumption in Canada is legal, as of October 17th. On the same day, Parliament put into effect new impaired driving laws that were crafted to address an anticipated increase in driving while impaired by marijuana. Although the former laws were adequate to address this issue, the new laws go much further in terms of providing tools for the police and Crown to
investigate, charge, and convict individuals of these offenses.
To begin with, a legal limit of permissible THC in the body has been established (analogous to the .08 mg% for alcohol in the blood). It is a summary conviction offence to have 2.5 nanograms of THC per millilitre of blood, and a hybrid offence is created for levels above 5 nanograms per millilitre (the two processes involve different minimum and maximum penalties). Unfortunately, one cannot definitively determine impairment based on the content of TCH in the blood. Studies have shown that the effects of marijuana will dissipate long before the THC is eliminated from the body. As well, there is no clear correlation between content of THC and level of impairment.
Of particular concern is the fact that a person that is a regular user of marijuana – e.g. someone that uses for medical reasons, develops a tolerance for THC and can be sober, despite the body exceeding these new, proscribed limits. Further, for chronic users of marijuana or individuals who consumed a large amount, THC can remain in the body for days and even weeks, thus, creating a situation where someone could be found to be over the legal limit days or weeks after they last consumed marijuana, and long after the effects of marijuana have worn off.
The new scheme for testing drivers involves the use of a saliva screening device, the Drager DrugTest 5000. The device requires that a swab be rubbed in the mouth for two to three minutes, between the gum and the cheek, in order to capture enough saliva for a suitable sample. There are no shortage of critics regarding the accuracy of this device and it may pose a challenge for some people that cannot produce sufficient saliva. Failing to provide a suitable sample – without lawful excuse, constitutes a separate offence with the same penalties as impaired driving.
This said, the Drager DrugTest 5000 is meant to screen individuals to determine if further testing is warranted. If it is, then a specially trained officer performs a series physical tests to come to an opinion about whether the person is impaired. If the officer is of that opinion, then the person can be required to provide a blood sample to determine the content of THC in their system. Many of these tests involve coordination exercises and other observations which are subjectively evaluated by the officer. People may not be able to perform well in these tests, even when sober. Pulse and blood pressure are also factored in; and it is not hard to imagine that someone’s pulse and blood pressure may be abnormal while being detained and put through a series of tests by a
uniformed police officer. As such, a person may be required to provide a blood sample on the basis of the officer’s subjective opinion and/or atypical physiological responses. And if that person consumed marijuana in the preceding days or weeks, the evidence will be sufficient for a conviction, even though the person may not have been impaired at all.
It is anticipated that may constitutional challenges will be made to the new impaired driving scheme based on the issues presented above plus many others. However, until they make their way through the various levels of court, there is a cautionary tale if the - now legal - consumer of
marijuana intends to drive a vehicle within days of that consumption.
Crossing the U.S. Border
Double Diamond Law is being asked by many people about the implications of using legal marijuana in Canada on travel to the United States. The following is an extract form an article on the CBC website which very sets out the issues and potential problems people may face when it comes to crossing the border. The article is also an excellent illustration of the advice we often cite regarding Canadian criminal records and travelling to the U.S.
> READ FULL ARTICLE
An assault is the intentional application of force, directly or indirectly, to another person, without that person's consent. Even a threat — by act or gesture — to apply force to another person, can constitute an assault.
Assault may be prosecuted by either summary conviction (i.e. less serious) or indictment (i.e. more serious). In most cases, a simple assault will be prosecuted by summary conviction. If convicted, you may face a fine of up to $2,000, or face up to 6 months of imprisonment, or both. In addition, other penalties may be imposed, such
as being placed on probation for up to three years, during which time you may have no contact with the victim and you may be required to receive anger management counselling.
In cases of domestic violence, you can expect the police and the Crown to prosecute the offence vigorously, regardless of the wishes of the complainant (alleged victim).
Charges such as assault causing bodily harm, aggravated assault, assault with a weapon, and sexual assault are vigorously prosecuted in British Columbia and can
often result in a sentence of incarceration.
What You Should Do: When charged with assault, always talk to a lawyer before engaging in any discussion with the police. Do not attempt to contact the complainant (alleged victim) without checking to see that there are no restrictions on doing so. If the Courts or the police have released you with a “no contact” order, you can be
charged with a new criminal offence if you make such contact. As well, by doing so, you may be arrested and denied bail.