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Frequently Asked DWI Questions

  1. 1
    How does the New Impaired Driving Law in Canada Different from Before?

    The laws of Canada are always changing and being amended – and criminal laws are no different. Legislators are always examining how to alter criminal offences and penalties to best protect Canadian citizens. On December 18, 2018, the standing laws regarding impaired driving were repealed, and new laws took effect

    In the months since, many people have opposed the new laws, questioning whether it is unconstitutional. In any event, the law currently stands, and everyone in Canada and throughout the country should be aware of the new law while it is in effect. The following is a brief overview of some changes made, and if you want to discuss a specific situation, speak with a Canada DUI Lawyer directly.

    In the past, in order to demand that a driver submits to a breath test, police officers had to have “reasonable suspicion” that the person was driving with alcohol in their system. The new law removes the reasonable suspicion requirement and allows officers to demand breath tests of any driver at any time. Police can seek breath samples at random, at roadside checks, or even at every traffic stop if they wish to do so. This has many people questioning whether the random testing violates their Charter rights. 

    The prior law criminalized driving “Over 80,” which refers to the legal limit for blood alcohol concentration (BAC) for drivers. The language of the law has been changed to “80 or Over,” which means a BAC of 80 can now result in charges. The law also added an important new provision of “within Two Hours of Operation.”

    This new two-hour window is a point of controversy because, under the law, a police officer could test your breath for two hours following the suspected drunk driving. In one case, a woman stated she had one drink and then drove to a house, where she consumed additional beers. The police showed up at the house to request a breath test because they claimed they received a report about her driving. Despite her BAC being higher after she consumed the beers – long after she stopped driving – the police arrested her for testing 80 and Over. 

    This is only one example of how the new law is giving police the authority to demand breath tests – even up to two hours after you stopped driving. Refusing a test can also result in serious criminal charges, so it is important to comply when possible and then contact an aggressive DUI defence lawyer.

  2. 2
    How to Beat a DUI or Impaired Driving Charge

    If a breath test shows that your blood alcohol level was over 80mg per 100mL of blood (or 0.08 percent), you can be arrested and face charges of impaired driving in Canada. Many people think that if they blew over 80, the Crown can automatically prove their charges, and there is no hope to avoid a conviction. Unfortunately, this leads many people to simply plead guilty to the charges without first speaking to a defence lawyer, which means they often accept penalties than are much harsher than necessary. The truth is that there are ways to fight against a DUI conviction and to minimize the impact on your life. Always discuss a DUI arrest with a defence lawyer before you make any decisions in your case. 

    No matter what your breath test results may be, police officers in Canada still must adhere to the law and cannot violate your Charter rights. From the time an officer pulls you over to the time you are released from jail, there are many opportunities for officers to go against required procedures and violate your rights. Any violations can be used as a defence to eliminate key evidence against you in your case. 

    An experienced defence lawyer will evaluate the actions taken by police before and during your arrest and identify any mistakes or violations by officers. Errors can allow your lawyer to argue that your breath test results and other evidence should not be allowed in court. While such mistakes might seem like technicalities, these technicalities can mean the difference between your charges being dropped and having a criminal record. 

    Another way you might be able to avoid an impaired driving conviction is for your lawyer to examine the possibility of a curative discharge. This option can avoid a conviction and, instead, have you complete a period of probation and seek curative treatment. Once this period is completed, your case can be dropped.

    Your lawyer can help demonstrate that you are in need of curative treatment by presenting medical records and proof of your participation in treatment since your arrest. Your defence lawyer will also need to convince the court that a discharge of your offence is not against the public interest. While you will still be subject to the driving suspension, and you will need to abide by all the terms of your treatment and probation, curative discharge can benefit you by avoiding an impaired driving conviction on your criminal record. 

  3. 3
    Do I have a defence for a DUI?

    DUI litigation is incredibly complex, to the point that the lawyers who do it tend to focus on nothing else.  It is completely, totally, 100% impossible to know if you have a defence by reading a webpage. It’s simply not going to happen.  This area of law is so complex, you won’t even know what questions to ask, even if you are already a practicing lawyer or law student.  DWI litigation is the criminal law version of brain surgery. The only way you can find out if you have a defence is by calling a DWI lawyer.

    In Calgary, you can reach Mr. Pearse directly at 1 866 912 3560.  He works 24/7/365.

  4. 4
    Am I going to lose my license from my DWI charge?

    If you are convicted of DUI, yes.

  5. 5
    What is the Ignition Interlock Program?

    Impaired driving convictions come with a mandatory driver’s licence suspension, which can make it difficult to keep your job and meet other obligations. While you likely cannot wait to get your licence back, there is another requirement for all impaired driving offenders before they can get their licences fully reinstated – participation in the Canada Ignition Interlock Program.

    An ignition interlock is a small device that can be attached to the ignition of your personal vehicle. Also called a “blow box” or “breathalyzer,” the interlock device requires a breath sample from the driver before it will allow the vehicle to start. The device tests the breath sample for alcohol and will only allow the car to start if no alcohol is detected. The device can require additional breath samples while the car is moving to prevent someone other than the driver blowing and getting the car to start. If alcohol is detected, the vehicle can be disabled.

    You can apply for the program as early as 30 days before your licence suspension ends. In order for Driver Fitness and Monitoring to approve your application, you must complete the requirements for licence reinstatement, including paying the required fees. For first-time offenders, you must complete the Planning Ahead course. Multiple offenders must complete the IMPACT program.

    You will then need to contact Smart Start Canada, which is the approved installer of ignition interlock devices. Once you have the device, you need to obtain your restricted driver’s licence in order to operate your vehicle. With that licence, you can drive as long as you adhere to the conditions of your ignition interlock. 

    Once you complete your term without any issues, you can have your full licence reinstated, and the device removed. If the device detects alcohol and issues warnings, your term can be extended before you can successfully complete the program.

    While the ignition interlock program allows you to regain restricted driving privileges, it can be costly. You will be responsible for all associated costs, including:

    • Application fees
    • Licence reinstatement fees
    • Getting the device installed by Smart Start Canada
    • Maintenance and readings of the device
    • Rental costs for the device 
    • Removal of the device

    While there are some reasons that might warrant an exemption from the program, such as documented medical conditions, you cannot use financial constraints as a valid reason to be exempt. 

    Navigating the process of the ignition interlock program in Canada can be complicated, confusing, and costly. It is preferable to prevent an impaired driving conviction when you can to avoid mandatory participation in the program. Discuss your impaired driving charges with a defence lawyer right after an arrest.

  6. 6
    Am I going to get a criminal record from my DUI charge?

    If you are convicted of DUI, yes.

  7. 7
    Can I Travel to the U.S. if I had Recently been Charged with a DUI?

    Impaired driving is an indictable offence in Canada, and people with DUI cases in the U.S. are generally not permitted to cross into Canada. However, if you are charged with DUI in Canada, are you able to travel to the United States? Unfortunately, the answer to this question can vary from situation to situation, and it is always wise to consult with a lawyer before trying to cross the border to the U.S. with any type of criminal record. 

    Having any type of criminal record can cause issues when trying to enter the U.S. The Customs and Border Protection (CBP) agents have significant discretion to turn people away and refuse to admit them into the U.S. Generally speaking, minor offences should not affect your admissibility. In the United States, a first-time DUI is a misdemeanor offence, not a felony. For this reason, it is not taken as seriously as it is in Canada for the purposes of entering the country. 

    If you only have one DUI on your record, chances are that you will not have problems entering the United States. However, if you have multiple DUIs or one DUI plus other offences that show up on a background check, you could be turned away. 

    Multiple DUIs are taken much more seriously than a first-time offence in the U.S. One DUI means you may have made a mistake and an isolated error in judgment, multiple DUIs tend to indicate that you have little regard for the law or the safety of others. For this reason, having multiple DUIs on your record may result in inadmissibility to the United States. 

    Additionally, you might encounter problems if you have a DUI plus other types of convictions, even minor ones. This indicates a pattern of criminal activity and disregard for the law to CBP agents. There is no telling which specific combination of offences on your record will result in inadmissibility or not. However, if you have been refused entry in the past, it is likely that you will be refused entry again.

    If you have multiple DUIs or you have previously been refused entry to the U.S., you can apply for an entry waiver. This requires submitting many forms, references, and other documents to the U.S. Department of Homeland Security (DHS). This application admits to your criminal record but asserts that you have the moral character in line with immigration standards despite your past convictions. If DHS finds that you qualify for a waiver, you will be able to travel to the U.S. with DUIs on your record.

  8. 8
    Will my DUI charge affect my immigration status?

    If you are convicted of DWI, in some cases it will.  In others, it will not.

  9. 9
    Will my DUI charge prevent me from certain types of employment?

    If you are convicted of DUI, in some cases yes.  This will depend on your chosen profession and/or your employer.

  10. 10
    What is the Alberta Administrative Licence Suspension (AALS) Program?

    When you are accused of impaired driving, you have more to worry about than your criminal charges. It is critical to defend against your charges, but you also will have a separate administrative case under the Traffic Safety Act taking place at the same time regarding your driver’s licence. This is referred to as the Alberta Administrative Licence Suspension (AALS) Program. It is important to seek assistance from a DUI defence lawyer who can begin handling both your criminal and administrative cases right away. 

    The AALS allows for different types of driver’s licence suspensions after an impaired driving arrest:

    • Roadside suspension – If a police officer claims to have a reasonable suspicion that you are driving while affected by alcohol or drugs, the officer has the right to issue an immediate licence suspension beginning at the traffic stop and lasting for 24 hours. 
    • .05 or 50 suspensionIf a breath test indicates that a driver has a blood alcohol concentration (BAC) of 0.05 percent or 50 mg per 100 mL of blood, the officer can issue a licence suspension and order vehicle impoundment. If you have not had a licence suspension before, you can have a .05 suspension and impoundment for three days. The suspension can increase to 15 or 30 days if you have had one or two prior suspensions, respectively.
    • Indefinite suspensionIf the Crown issues charges of impaired driving against you after an arrest, your licence can be indefinitely suspended until your case is resolved. There are ways to appeal this possibly lengthy suspension, and you should speak with a lawyer right away about appealing the case to the Transportation Safety Board. 
    • Zero-tolerance suspensionIf someone has a learner’s licence or a graduated driver’s licence (GDL), they are considered to be a novice driver and are not permitted to drive with any BAC at all. If a breath test indicates alcohol in a novice driver’s system, the officer can suspend their licence for 30 days.

    The above administrative licence suspensions can happen whether or not you are ultimately convicted of impaired driving. Even a short suspension of your driving privileges can impact your life, as you might have difficulty getting to work, taking your children to school, or making court dates. If you need a valid licence to drive for work, you could lose your job. It is important to appeal your licence suspension with the help of an experienced defence lawyer whenever you can.

  11. 11
    Will I lose my license because of my DUI? If so, for how long?

    If you are convicted of DUI, yes.  How long depends on the circumstances of the file, and your criminal record.

  12. 12
    Will I go to jail because of my DWI? If so, for how long?

    If you are convicted of DWI, yes.  How long depends on the circumstances of the DWI file, and your criminal record.  Generally, people with no related record and who have not killed or injured someone do not go to jail, but there are circumstances where this could happen.

  13. 13
    Look, I’m a really good person. I’ve never done anything like this before. It’s my first DUI. A criminal record will really make it hard for me to find work, and I REALLY need my license. I need it for work, and I need it to drive my family around. Do you think the crown will just spontaneously drop all the charges?

    Probably not.  Crown prosecutors do stay charges, but it won’t be based on your general good character.  Whether you win the DUI charge or not will depend on the specific defences available on your file.  It will have nothing to do with your work or family considerations.

  14. 14
    I’ve heard that if you fail the breathalyzer, you are “automatically guilty.” Is that true?

    No. Even if you blow over the legal limit or refuse to provide a sample, there may be relevant Charter or statutory applications that can be made. The general public usually thinks of these things as “technicalities,” but the reality is that in a functioning democracy, civil liberties are very important. What to the lay-person may seem relatively trivial can translate into an acquittal (i.e. you win). This is because the state (usually via the police) is responsible for protecting your constitutional rights. When they do not do this, they lose the benefit of a conviction.


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