Lawyers say defence counsel and their clients must always be aware of those watching and listening following the acquittal of a driver who had his failed roadside breath test and legal consultation recorded by a TV news station.
It was on Aug. 24 that Justice David Rose, in R. v. Gautam 2017 ONCJ 577, acquitted Kunal Gautam of driving over the legal limit after he found that his constitutional rights were violated at a York Regional Police spot check after Global News recorded his breath test and on-site phone call with a lawyer.
“That right to counsel, of all the Charter rights, it is one of the most sanctified rights in the Constitution because of solicitor-client privilege and your right to get legal advice … when you are under arrest or [under] detention,” said lawyer Calvin Barry, of Calvin Barry Professional Corporation. “The other [Charter breach] was unreasonable search and seizure [in that] he had a reasonable expectation of privacy and not have somebody have a camera in his face and be recording when he’s trying to get some legal advice and providing the samples.”
In the end, it remained a mystery as to who at York Regional Police ultimately gave Global the green light to film all aspects of that night’s RIDE operation. “No police witnesses could answer that question, but their conjecture that it was someone well above the rank of police constable is entirely reasonable,” stated Justice Rose. Lawyers say defence counsel and their clients must always be aware of those watching and listening following the acquittal of a driver who had his failed roadside breath test and legal consultation recorded by a TV news station.
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Pleading guilty just to get things over with may work in your favour for a lot of cases, but that isn’t really true when pleading guilty for a DUI in Canada.
It is often the case that those who’ve had their first DUI charge don’t want to deal with the anxiety and stress of going to court appearances and think that pleading guilty can result to less issues down the road. This is far from reality and the following reasons will tell you why.
It is Okay to Take Your Time
There is no rush when pleading guilty for a DUI in Canada because the court’s process takes months! You’ll have a few weeks to procure a criminal lawyer after your first court appearance (guilty plea or none). Your hired lawyer will take weeks to review the case against you, combing the disclosure for details and requesting for more information if needed.
You’ll Be Better Off When Making an Informed Decision for Real
Pleading guilty for a DUI in Canada during your first court appearance is like trying to pilot a plane on your first day at flight school. You don’t know how things work and by insisting on plunging head-on, you’ll be putting yourself in trouble and jeopardizing your future.
A Strong Case Against You May Be Absent
Your first court appearance is all about obtaining your disclosure – the file that contains the evidences against you as well as other important details that can help defend your case. It is possible that the disclosure can unlock the gates to your freedom!
Your Disclosure Can Clear Your Name
Some DUI arrests have mistakes that can mitigate circumstances or it is possible that you’re not supposed to be charged due to lack of evidence to begin with. A seasoned criminal lawyer can uncover all that and advise you on the best course of action to take to make the case’s outcome more favourable for you.
Remember, pleading guilty may or may not be the best course of action if you’ve been arrested for a DUI. It is best to consult with a criminal lawyer with an extensive experience handling DUI cases. Calvin Barry is a criminal lawyer in Toronto who can help. Contact Calvin Barry Law today!
Getting convicted for driving under the influence means that a DUI charge will be linked to your name. This link will be there for years to come until such time that you’re able to get a record suspension or a DUI pardon with the help of a DUI lawyer.
But what constitutes impaired driving?
Is it impaired driving if you simply slept in your parked car while waiting for the effects of alcohol intoxication to go away?
Would you be fine with going to jail for sleeping in your car when you’re drunk because you did not want to drive until you are feeling much better?
Location, Location, Location!
What defines impaired driving or driving under the influence differs widely between provinces and territories. In a 2016 case in Ontario, a drunk man was found sleeping inside his car which was parked outside a housing complex in Burlington. He was charged with DUI.
The Ontario ruling by Justice Alan D. Cooper stated that the man, Ryan Toyota, was not guilty of any criminal offences despite leaving the engine and the exterior lights on because of several factors. One factor is that he meant to stay in a friend’s house but got locked out. Another is that he had to stay inside the car because this occurred in February 2015 in sub-freezing temperatures.
The ruling focused on a section of the Criminal Code which establishes the presumption of care or control of the vehicle – stating that the risk of danger is a fundamental element of care and control.
In the court’s opinion, they believed that Mr. Toyota had no intention of driving his vehicle and that the engine was just left on to keep himself warm. They also believed that Mr. Toyota had no means of getting inside his friend’s home because the homeowner passed out after accidentally locking the door on the way in.
The court said that it was clear that Mr. Toyota intended to spend the night in his friend’s home and made do with the safer course of action when given no other options except staying in his car or driving home.
What Really Happened
The police report did say that they found the defendant inside his vehicle which was parked outside the housing complex in sub-zero temperatures. The officer opened the door and smelled alcohol so he asked Mr. Toyota to step out and found that he was intoxicated. Mr. Toyota was then arrested and brought to the police station to be tested.
Justice Cooper noted in his ruling that the data from the police clearly stated that Mr. Toyota’s car was parked properly and in no danger to anyone at the time the police officer found him. Although there was a realistic risk of the defendant choosing to drive in his intoxicated state, the fact remains that he did not.
The court also believed that although Toyota’s blood alcohol level was lot higher than what defines legally drunk, it is highly unlikely that he would have suddenly change his mind and go driving if the officer didn’t find him. At the end of the day, the details of the circumstances dictated the court’s ruling.
The above is why you need a seasoned DUI Lawyer to help you deal with a DUI charge. Not everyone who is in a vehicle and intoxicated mean to do harm or is a danger to people. Calvin Barry Law specializes in uncovering the truth. He is the Toronto Criminal Lawyer that you need on your side! Contact Calvin Barry today!
Hiring a DUI lawyer is the first thing that anyone accused of driving under the influence or facing a DUI charge should do.
The above is to ensure that a good defense is established early on more so that territorial, provincial, and federal governments are quite strict and ruthless when it comes to prosecuting DUI cases.
Groundwork for Good Defense
Whether or not one is guilty of driving under the influence, the courts follow a procedure wherein the accused will be asked to appear in court. Should the first court appearance is to be without a lawyer, the defendant can file a request for two to three weeks continuance to find and hire a DUI lawyer. In the event that the prosecutor provides a disclosure package containing witness statements and police notes, a charge screening form, and a synopsis of DUI charge, this should be safeguarded and shared with the selected lawyer.
Going for A Guilty Plea
Hiring a DUI lawyer is a must even for those who plan to plead guilty. This is because even with a guilty plea, there are still negotiations to be done that can turn events to be more favourable for the defendant.
Note that pleading guilty will lead to a criminal conviction that will be tied to one’s name for life. It will be there no matter how much fine was paid and no matter how long a jail time was served. It is one thing to be accused and convicted and a totally different thing to convict one’s self. For one, holding a public office will be next to impossible as well as having a career as a medical professional, a legal professional, part of the law enforcement, and many more. You will have to be fully aware of the consequences of pleading guilty before doing so. Having a DUI lawyer can help you with this.
Defend Against a DUI Charge
Choosing to fight a DUI Charge should begin with a good strategy formulated by a Criminal Lawyer. This requires a detailed initial consultation between the accused and the DUI lawyer to counter check all details which include but are not limited to:
- What the accused drank or ingested
- What the police saw and said
- What the defendant saw and said
- How were the intoxication tests administered
- Were there any witnesses
- Was the protocol followed
- How the arrest was done
Part of the defense for a DUI charge is for the defendant to behave as a model citizen and not cause trouble during the case’s duration. This means dressing appropriately for court, showing up on time, responding respectfully when addressed, and generally showing a sense of social responsibility. Know that no matter how amazing a DUI lawyer is, things will not end well with a client that comes to court late and obviously intoxicated.
A good DUI lawyer will prepare the client for cross examinations and giving testimonies, possibly going over questions the other party will ask to help the client be more confident and eloquent when speaking in court. All in all, a defendant that can show the court that he’s repentant and shows commitment to be a better person is a dream client to defend for DUI lawyers.
A DUI conviction can mean a stain on your record that can affect what jobs you can take, where you can buy or rent a home, how much insurance you’ll have to pay, and more. You need to ensure that you don’t hurt your chances of getting a DUI pardon as soon as possible and that you have a DUI lawyer that can mitigate your charges. Calvin Barry is a Criminal Lawyer in Toronto that can help with this. Contact Calvin Barry Law today!
The Canadian government is going to increase fines for criminal DUIs and making a move to codify aggravating factors that are usually left for a judge to decide on.
Fines to Change
The omnibus Bill C-46 brought on the changes related to drinking-driving offences, even changing the designations for DUI now having DUI over 0.12 and DUI over 0.16.
Different punishments will be meted for different blood-alcohol concentration in the new proposed law. If it pushes through, a person with a blood-alcohol concentration (BAC) of 0.12 will face a minimum fine of $1,500 and a person with a BAC of 0.16 will face a $2,000 fine. The fine to be paid is on top of facing a criminal conviction, needing to attend remedial programs, and having a 1-year driving prohibition.
The new fines are a bit hefty compared to what judges usually order particularly for first time offenders. However, to be fair, a lot of impaired driving cases do involve people driving around with a BAC 0.12. The fact that the difference between a 0.11 and a 0.12 can be chucked to a breathalyzer error or some other factor has been considered but wasn’t given much weight.
Judges No Longer Have a Say on Aggravating Factors
Getting fined $2,000 because you resisted arrest, have a BAC of 0.25, and tried to flee an accident site is fair but under the new law, a person simply driving with a BAC 0.16 will be fined the same. This may raise your eyebrows and you won’t be alone in thinking something isn’t adding up. However, the new law will have to be observed and implemented whether people agree with it or not.
It is clear that bill C-46 aims to create a mandatory list of minimum fines for different BAC of those caught committing a DUI. This change means that further evaluation of the case and circumstances will no longer have a bearing on the fine. It is now only a matter of months before the bill becomes an actual law.
New Punishments for DUI Offences
Minimum punishment will be comprised of paying a fine of $1,000 for first offence, an additional of 30 days imprisonment for second offence,, and imprisonment of 120 days for the third offence and above. Imprisonment of no more than 10 years will be meted if the offence is prosecuted by indictment. For offence that is punishable on summary conviction, punishment will be an imprisonment of not more than 2 years minus a day. Paying a fine of $1,500 for a BAC of 0.12 and paying $2,000 for a BAC of 0.16 goes on top of previously mentioned punishments