Impaired Driving Lawyers in Victoria

What is Impaired Driving?

Impaired driving is one of several criminal driving charges that can be filed against drivers in Victoria. It is also known as Driving Under the Influence (DUI) or Driving While Intoxicated (DWI). However, these terms are used more prominently in the United States, while “impaired driving” is the term used in Canadian law. An impaired driving charge is laid when the police believe that you have operated a vehicle while under the influence of drugs or alcohol to such a degree that it affected your ability to drive safely.

The provisions for operation while impaired in the Criminal Code are:

A charge for impaired driving is different from a charge under the Motor Vehicle Act of British Columbia. With an impaired driving charge, the police will take your photograph and fingerprints and you will have a police file. A conviction for impaired driving may result in a criminal record, whereas convictions under the Motor Vehicle Act will only appear on your Driver’s Abstract.

The Victoria, Oak Bay, and Saanich Police Services are equipped with large teams of law enforcement officers who maintain traffic safety in the city. The British Columbia justice system is staunchly committed to reducing the number of accidents on the roads and takes all impaired driving charges very seriously.

In order to convict you of impaired driving, the Crown must prove the following elements of the offence beyond a reasonable doubt:

1. You operated a motor vehicle, vessel, aircraft or railway equipment, and
2. You were voluntarily impaired by alcohol or drugs, or a combination thereof.

It is important to bear in mind that the vehicle does not need to be in motion for you to be charged with impaired driving. If you are found to be in care and control of the vehicle to the degree that you could easily set it into motion or if you have a blood alcohol and/or blood drug concentration that is equal to or exceeds the legal limit within two hours of operating your vehicle, you can be convicted.

Similarly, you do not need to be behind the wheel of a car to be convicted. The vast majority of the cases we deal with involve a motor vehicle, but this charge can include electric scooters, bicycles, canoes, and even hoverboards.

If serious harm is caused by drug or alcohol-related driving, the charges may be upgraded, and the consequences made more severe. For example, an impaired driving charge may be upgraded to impaired driving causing bodily harm or impaired driving causing death.

Investigation of Impaired Driving Charges in Victoria

An impaired driving investigation is usually initiated at a routine police stop, at the scene of an accident, at a check-stop, after a driver is pulled over or pursued, or following a report or complaint from an alleged witness.

In Victoria and throughout the rest of British Columbia, some police have been equipped with In-Car Digital Video (ICDV) and body-worn cameras. These cameras are commonly used to record someone’s driving. The video footage serves as evidence of impairment, or lack thereof, and can prompt or help combat impaired driving charges. It is therefore critical to secure a competent defence lawyer who will request and review this evidence, before deciding how to proceed.

If an officer has a reasonable suspicion that you have a high blood alcohol concentration and are driving impaired, you may be asked to perform a physical sobriety test at the roadside. This will likely also include taking a mandatory alcohol screening device test where you blow into a roadside breathalyzer device. Such tests are mandatory in Canada for all drivers regardless of why you were initially stopped.

The officer will ask you to provide this breath sample by blowing into a handheld breathalyzer. If you refuse this request, you are likely to be charged with section 320.15 of the Code, failure or refusal to comply with demand. If you blow over, or refuse to blow, you will be arrested and taken to a Police District Office for processing. Once at the Police District Office, if you failed the roadside breathalyzer test, you will be required to provide two further samples in a breathalyzer which measures your exact blood alcohol concentration. If this machine registers a number equal or over 80 mg of alcohol in 100 mL of blood, you will also be charged with blowing over 80 (section 320.14(1)(b)).

If the officer has a reasonable suspicion that you have a high drug blood concentration, a Drug Recognition Expert will be called in to determine if you are impaired, and if so, what type of drug you are impaired by.

The Drug Recognition Expert will conduct a 12-step test to assess drug impairments, including measuring your:

• Blood pressure,
• Pupil size,
• Body temperature,
• Pulse,
• Eye’s reaction to light,
• Horizontal Gaze Nystamus (HGN),
• Vertical Gaze Nystamus (VGN), and
• Divided attention.

There are no oral screening devices used to calculate blood drug concentration. Bodily fluid samples (blood or urine) must be sent to a lab in order to determine the concentration of drugs in the blood. If the results of the lab test confirm the suspicions of law enforcement officers, charges will be laid.

It is important to remember that while in police custody, what you say can be used against you.

There have been many cases where the accused would have likely had their charges dropped had they not made statements to the police such as:

• “I know I made a mistake; I shouldn’t have been driving.”
• “What’s the point of giving breath samples? I know I will blow over.”

The Victoria, Saanich and Oak Bay Police Services take all driving offences seriously. Despite an officer’s friendly appearance and chatty nature, what you say in between requests for breath samples, during the drive to the station, or at the detachment can and will be used against you.

Bail Process and Conditions for Impaired Driving Charges in Victoria

How do I get myself or a loved one out on bail for impaired driving charges in Victoria?

For most impaired driving charges, the police will release you with paperwork to attend court and obtain fingerprinting. A formal bail hearing will not be necessary, however there may be tight restrictions placed on your release, nonetheless.

If this is your second or subsequent impaired driving charge, or there are other accompanying charges, the Prosecutor may have a compelling argument to convince the Judge that you should be kept in custody and require a formal bail hearing. An effective defence lawyer can provide the Judge with a release plan showing that you are not at risk of re-offending, nor are you a danger to the public. This will challenge the Crown’s argument.

If necessary, the bail hearing must be held within 24 hours, a period that starts from the moment of arrest or detention rather than the time when you are brought to the district office or Courthouse.

On a weekday, you will be transferred from the district office to the Victoria Courthouse for your bail hearing.

The address of the Courthouse is as follows:

Victoria Courthouse
850 Burdett Ave
Victoria, BC V8W 1B4
(250) 356-1478

If you are arrested after approximately 3 p.m., you will be held at the detachment until the following morning, at which time you will be transported to the Courthouse for your bail hearing. Your hearing will be conducted in front of a Provincial Court Judge.

If you are arrested on Friday after approximately 3 p.m., or if you are arrested on a weekend, your bail hearing will be conducted at the detachment via telephone with a Justice of the Peace from the Justice Centre.

Loved ones are not able to contact you while you are detained. The police will not release any information to friends or family due to privacy laws. Your lawyer is the only person allowed to contact you. Once the police have verified your lawyer’s details, they will pass on information about your whereabouts, if requested.

Because of these difficulties, while you are held in custody, it is best to appoint a competent defence lawyer as soon as possible to manage the legal processes and communicate with loved ones. After an arrest, the police must provide you with the opportunity to call a lawyer in private and, if that happens, stop questioning you.

Once you retain one of our experienced criminal defence lawyers, we will begin working to secure your release on bail.

We will immediately do the following:

1. Call in to the district office where you are being held, or the Victoria Courthouse if you have been transported, and speak to you.
2. Contact the Prosecutor assigned to the bail hearing to start negotiating your release.
3. Order and secure a copy of the police information package that details the allegations against you in advance of the bail hearing. This allows the lawyer to make meaningful representations to the court about why you should be released on bail.
4. Conduct either an in-person or teleconference bail hearing to secure your release.

When you attend your bail hearing, the Judge will consider the following factors:

• Is detention necessary to secure your attendance in court?
• Is detention necessary to protect the public from a substantial risk of re-offence?
• Is detention necessary in all the circumstances to maintain confidence in the administration of justice?

Although it is unlikely that you will be denied bail for this type of charge, restrictions may nevertheless be applied to your release. Rest assured, we will work to not only secure your release but also to ensure the least restrictive set of bail conditions (including the minimum cash deposit).

In order for our lawyers to secure less stringent conditions, the Judge will need to be satisfied that you will attend court as required and that you pose no significant risk of harm to the public.

Our lawyers are often successful at persuading the Crown Prosecutor in charge of bail to let our clients out. If we can’t convince the Prosecutor, we can conduct a formal bail hearing and work to convince the Court. Even if you are ultimately detained, we can appeal that decision on very short notice through a bail review, which is conducted at the Supreme Court of British Columbia.

Where can I pay for bail for impaired driving charges in Victoria?

If you or a loved one are charged with impaired driving in Victoria and granted bail, you may be required to provide a cash deposit to secure release. You can pay bail at any court registry (courthouse) in British Columbia. If you live in Vancouver, you can pay bail there for someone detained in Victoria.

The Victoria court registry is open from 8:30 – 4:30, Monday to Friday.

The contact details of the registry office at the Victoria Courthouse are as follows:

Victoria Courthouse
850 Burdett Ave
Victoria, BC V8W 1B4
(250) 356-1478

To pay your own bail, you can make a payment after your hearing, assuming you have sufficient funds with you to do so.

How do I change my release conditions for impaired driving charges in Victoria?

Release on bail with impaired driving charges may require either a surety, cash or a no-cash deposit.

Beyond that, you may face tight restrictions, including conditions to refrain from:

• Being behind the wheel of a motor vehicle,
• Using drugs or alcohol,
• Staying out beyond a certain time (i.e. curfew),
• Breaking any laws,
• Possessing weapons,
• Visiting certain places, and/or
• Travelling.

The Judge can also impose additional conditions such as:

• Attending counselling,
• Reporting to probation,
• Residing where approved, and/or
• Maintaining or seeking employment.

A variety of factors will be considered when determining your precise restrictions, including:

• Your criminal history,
• Your history of drug/alcohol usage,
• Your physical and mental condition,
• The nature of the alleged impaired driving offence, and
• The likelihood that you will flee.

If you have already been released, at least for the short term, it is critical that you make arrangements to abide by your conditions until they can be changed. Breaching the terms of your release can result in further charges or revocation of your bail, as well as a forfeiture of any cash paid to secure your release. It is important to take these conditions seriously.

Once the matter is in court, we can work with the Crown prosecutor to alter your conditions. This includes either adding exceptions to some of the conditions or eliminating them altogether.

If your court date is far away and you cannot wait until then, we can arrange to have the matter dealt with sooner. Our first priority is always to stabilize your release conditions. That way, you will not feel pressured to plead guilty because of the restrictive terms of your release. Once the conditions are manageable and minimally intrusive to your daily routine, we can focus 100% of our attention on defending the case.

Penalties for Impaired Driving Charges in Victoria

Impaired driving and impaired driving causing bodily harm are both hybrid offences, meaning that the Crown can elect to proceed by summary or indictment. This decision impacts the punishments that are available to you, with summary being less severe and indictment being more severe. Where impaired driving causes death, the Crown must proceed by indictment.

The maximum punishments for impaired driving include:

• Indictment
  • Impaired driving: Up to 10 years’ imprisonment,
  • Impaired driving causing bodily harm: Up to 14 years’ imprisonment,
  • Impaired driving causing death: Up to life imprisonment;

• Summary
  • Impaired driving: Up to 2 years’ less a day imprisonment,
  • Impaired driving causing bodily harm: Up to 2 years’ less a day imprisonment.

Regardless of how the Crown proceeds, all impaired driving charges have mandatory minimum punishments:

• First offence: $1,000 fine,
• Second offence: 30-day imprisonment, and
• Third offence: 120-day imprisonment.

The punishments that you will have to endure for impaired driving increase where:

• More than one person was injured/killed by your impaired driving,
• Your blood alcohol concentration was excessively high,
• You were participating in a street race,
• You had a passenger with you under the age of 16,
• You were being paid for operating the vehicle,
• You were operating a large motor vehicle, and
• You were not permitted to be operating the vehicle.

You will also face British Columbia Motor Vehicle Act punishments that, although not criminal, will significantly impede your freedom. Pursuant to the Motor Vehicle Act, a peace officer will issue you a 90-day Administrative Driving Prohibition (ADP) if they believe that you are impaired by alcohol, drugs, or a combination of the two, if you are tested and are found to be over your legal limit of drugs and/or alcohol, or if you failed to comply with a demand to test your sobriety.

With an ADP you will have your license suspended immediately, regardless of whether you are criminally convicted. If you breach your ADP, it will result in further punishments. You have 7 days to appeal your license suspension, so it is important to obtain a competent defence lawyer as quickly as possible.

If the police decide not to proceed by way of criminal charges, you may still receive an Administrative Roadside Suspension (ARS) pursuant to the Motor Vehicles Act. An ARS imposes a 90-day suspension where a person is alleged to have committed an offence in contravention of the Criminal Code impaired driving provisions.

If upon providing a roadside sample it is determined that your blood alcohol is in the warning range between 0.05-0.08 BAC, the following consequences will result:

1st time within five-year period:

• Immediate seizure of your driver’s license, and a 3-day suspension;
• The vehicle you are driving will be impounded for 3 days;
• You are required to pay a $200 administrative penalty; and
• You have to apply to have your driver’s license reinstated and pay the license reinstatement fee as well as any other outstanding debts to ICBC or the Government of BC.

2nd time within five-year period:

• Immediate seizure of your driver’s license, and a 7-day suspension;
• The vehicle you are driving will be impounded for 7 days;
• You are required to pay a $300 administrative penalty;
• You may be referred to the Responsible Driver Program; and
• You have to apply to have your driver’s license reinstated and pay the license reinstatement fee as well as any other outstanding debts to ICBC or the Government of BC if you wish to drive again.

3rd time within five-year period:

• Immediate seizure of your driver’s license, and a 30-day suspension;
• The vehicle you are driving will be impounded for 30 days;
• You are required to pay a $400 administrative penalty;
• You may be referred to the Responsible Driver Program;
• You may be referred to the Ignition Interlock Program; and
• You have to apply to have your driver’s license reinstated and pay the license reinstatement fee as well as any other outstanding debts to ICBC or the Government of BC.

If your roadside breath sample produces a Fail result, indicating a BAC of greater than 0.08, or if you fail to provide a breath sample, you may receive a 90-day IRP if the police decide not to pursue criminal charges.

A 90-day IRP entails the following consequences:

• Immediate seizure of your driver’s license, and a 90-day suspension;
• The vehicle you are driving will be impounded for 30 days;
• You are required to pay a $500 administrative penalty;
• You may be referred to the Responsible Driver Program;
• You may be referred to the Ignition Interlock Program; and
• You have to apply to have your driver’s license reinstated and pay the license reinstatement fee as well as any other outstanding debts to ICBC or the Government of BC.

A conviction for impaired driving can have many negative consequences on your future. You may experience difficulties securing employment in the field of your choice, especially in roles that require driving. The lifelong criminal record that results from a conviction can also hinder immigration and travel. You will almost certainly face higher insurance premiums as well.

Therefore, even if you intend to accept responsibility for the offence, it is worthwhile to explore your options and consider all the potential penalties. Even if the evidence is stacked against you, it may be possible to negotiate a resolution to avoid a lengthy jail sentence. Furthermore, a community-based sentence may be obtained even where the Crown is seeking jail time.

Rest assured, our lawyers will work hard to defend you so that you are not saddled with the consequences that stem from a conviction. In fact, we can canvass a range of sentencing options with the Prosecutors that will either leave you with no criminal record or impose minimal restrictions on your liberty after sentencing. To learn more about potential non-criminal resolutions, please visit our Resolutions page, or read our FAQ on resolutions and other sentencing options.

Defending Impaired Driving Charges in Victoria

What are the best defences to impaired driving charges in Victoria?

The defences that are available for impaired driving charges depend on the facts of your particular case.

However, some effective defences to impaired driving charges include:

• Violation of constitutional rights: The Canadian Charter of Rights and Freedoms sets out your rights before and after your arrest. If the police fail to abide by these rights, it can aid your defence.
• Involuntary intoxication: If you did not voluntarily consume alcohol or drugs, this could help challenge the mental element of the offence. For example, if you are drugged without your knowledge.
• Defence of necessity: If you or one of your passengers was at immediate risk of harm, and you drove for no longer than was necessary to escape that harm, you may have a defence to impaired driving.
• 320.14(5)(6)(7) exception: According to the Code, you cannot be found guilty of impaired operation where you consumed the substance in question after you stopped operating the vehicle and you had no reasonable expectation that you would be required to provide a breath/bodily substance sample. Additionally, if you had alcohol in your system, your alcohol consumption must be consistent with your blood alcohol concentration, and you must not have had a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood when operating the vehicle. This would help you defend against section 320.14 (1) (b)(c) & (d) which state that if your blood alcohol concentration, blood drug concentration, or a combination thereof exceeds the legal limit up to two hours after operating the vehicle, you can be convicted.

We will carefully review the entire police file, which may include expert reports from a traffic reconstructionist, witness statements, medical evidence, collision reports, photographs, video footage, and other documents pertaining to your case. Our lawyers will explore every possible defence that could raise a reasonable doubt about the Prosecution’s evidence and/or your Charter rights being upheld.

Even if the charges proceed and you are found guilty, a good defence lawyer can greatly reduce the severity of the consequences for you.

Our lawyers are experienced with impaired driving cases and have achieved acquittals for our clients in even the most hopeless situations. Our high success rate speaks for itself; it’s beneficial to have one of our meticulous impaired driving lawyers in your corner.

How can I help defend impaired driving charges in Victoria?

If you have been charged with impaired driving, the following actions can help your lawyer build a strong defence:

• Make a statement about what happened;
• Have passengers write down their observations of what happened;
• Collect and maintain all documents and records about the event;
• Gather any photographic evidence that you may have; and
• Log any relevant texts, emails or phone calls.

As soon as you are released, start gathering any information that may be of use to your lawyer. What information is relevant will depend on the facts in your case. If you are uncertain what information to collect, you should contact one of our lawyers immediately to create a plan of action for gathering information.

If you are truly proactive about the matter, consider doing the following:

• Secure proof of employment,
• Secure reference letters,
• Enroll in counselling (e.g. alcohol or drug rehabilitation),
• Secure a record of prescriptions, and
• Secure a record of any mental health conditions you suffer from.

These steps can be very helpful in building an effective defence (or convincing the Prosecutor to drop the charges altogether).

What can a lawyer do to help me defend against impaired driving charges in Victoria?

As we start preparing your defence by examining police actions and the evidence against you, there are certain defence strategies that can be used to aid your cause.

Some of these include:

• Assembling documents, photos, texts, etc. that contradict the allegation and support your version of events;
• Identifying mistakes in the actions of the police, such as Charter breaches; and
• Uncovering administrative/systemic errors, such as “Jordan delay,” non-disclosure, lost or destroyed evidence, etc.

What’s Next?

Most of the information above relates to simple impaired driving cases, which can become increasingly complex and fact-specific depending on the circumstances of your case.

We have tried our best to provide a general outline of what you can expect if you find yourself in this situation, but this is just the tip of the iceberg.

To learn more about how we can help, please contact our team of Impaired Driving Lawyers. We will conduct a thorough review of your situation and tailor a precise strategy that targets your successful defence.