Did you know that impairment is an issue of fact, which the trial judge must decide on the evidence presented by the prosecutor. The prosecutor or crown attorney must prove the case beyond a reasonable doubt which means that the accused doesn’t have to prove that he was NOT impaired while operating a motor vehicle. Therefore, if the amount and degree of proof required for a judge to convict you with an impaired driving charge is not sufficient or beyond a reasonable doubt, the case will be thrown out. In other words if there isn’t sufficient evidence of impairment, a judge can not convict you for impaired driving and the case will be dismissed, which means you WIN!
What types of evidence of impaired driving must the prosecution prove to convict the accused?
In order for a prosecutor to prove you were impaired while driving, the following evidence may be used by the police officer in an Ontario court:
- The accused was driving in an unorthodox manner with unusual patterns.
- The officer could smell alcohol from the driver.
- Red or bloodshot eyes with dilated pupils.
- Unclear or slurred speech.
- Pink/Rosey complexion.
- Inability to balance while standing..
- Inability or difficulty showing drivers license, ownership, insurance papers.
Any other types of evidence showing symptoms of impairment
Possible Impaired Driving Defences:
- The accused was driving in an unorthodox manner with unusual patterns: in this instance where the accused was driving in an unorthodox or unusual manner, the pattern of driving may have been due to the fact that the driver was distracted, or the road conditions may not have been normal. Other possible defences are mechanical defects in the motor vehicle the accused was driving at the time.
- The officer could smell alcohol from the driver: The accused may have only consumed one drink which may have caused the smell of alcohol from the breath of the accused. Toxicologists are able to show evidence proving that one drink is often not sufficient to cause impairment. Another defence can be alcohol being spilled on the clothing of the accused. The smell of alcohol could have been from a passenger in the motor vehicle with an open container. Therefore, the smell of alcohol from the accessed does not necessarily equate to impairment.
- Red or bloodshot eyes with dilated pupils: Red eyes and dilated pupils may be caused by a large number of factors. Alcohol is not the only cause for a person’s eyes to turn red or the pupils to dilate. The accused may have had allergies that triggered these symptoms. Other defences are passengers in the vehicle smoking or being at a location that was filled with smoke causing these symptoms. Even exhaustion or being tired could have caused the accused to have red eyes with dilated pupils.
- Unclear or slurred speech: Slurred speech may have been due to disabilities or medical issues. The accused may have just received a surgery from a dentist to take out his/her teeth or other dental work done.
- Pink/Rosey complexion: Some possible defences and causes for a pink and rosey complexion may have been due to the increase blood flow from nervousness as a result of being pulled over by a police officer. Was the accused driving home from the gym? Workouts have a tendency to produce a rosey complexion in certain people.
- Inability to balance while standing: A lack of balance may have been caused by the person’s lack of ability, wearing high heels, tiredness, or other physical disabilities.
- Inability or difficulty showing driver’s license, ownership, insurance papers: For many people being pulled over by a police officer is a terrifying and stressful experience. Many people are not accustomed to producing these documents on a regular basis. It is very easy to forget or misplace insurance or registration paperwork especially in the circumstances faced by the accused.
Additional Impaired Driving Defences:
A knowledgeable criminal lawyer that specializes in impaired driving may be able to help you gather and present sufficient evidence to prove that you were sober while operating the motor vehicle. Were there any witnesses in the vehicle with you that would testify that you drank moderately? Were there witnesses you spent time with that day who know how many drinks you had? Was the accused with any witnesses that day who could testify that you behaved normally and were not impaired that day?
Finally, a good criminal lawyer can help you dismiss your impaired driving charge by challenging court procedural problems. Impaired driving charges and Over 80 charges can be dismissed if there is an unreasonable delay. Many charges of impaired driving and Over 80 have been withdrawn at trial in the Ontario Court of Justice prior to the commencement of an application under s. 11(b) of the Charter for a stay of proceedings due to unreasonable delay of time from the date when the trial was set.
Brian Starkman has been named the “Best Impaired Driving Lawyer” in Ontario.
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