DUI, Impaired Driving

What You Need to Know

Impaired driving. Drinking and Driving. Driving Under the Influence/DUI. Over 80 BAC (blood alcohol content). No matter what you call it, these charges are within one of the most heavily litigated areas of criminal law - but are also some of the most defensible. This is due to the often technical and precise nature of the law and instrumentation involved in drinking and driving offences.

In Calgary, approximately 1,500 people are charged with DUI’s every year. Drunk driving can capture all segments of society and is not limited to those individuals who are falling over drunk. Often times those charged with impaired driving offences are ordinary citizens who did not feel drunk, did not act drunk and did not drive erratically, but still provided breath samples in excess of the legal limit. 

Legal Terms and Definitions

In Canada it’s not illegal to simply have a drink and drive. Criminal charges can occur where police gather evidence relating to one of three possible charges:

Impaired Driving (or DUI):  Appearing to be physically affected by alcohol so that your ability to operate a motor vehicle is impaired. These typically include symptoms such as stumbling, slurring, red or watery eyes, dazed look, etc. Sometimes police misread cues and presume that these symptoms are due to the consumption of alcohol or marijuana, however in reality may be the result of a prescription medication, a medical condition, fatigue or myriad of other factors. Other times, police simply exaggerate what they see. 

Over 80mg% (‘Over 80’): Having a blood alcohol content that is in excess of the legal limit of 80 milligrams of alcohol in 100 milliliters of blood. Sometimes it’s difficult to know after a social function if you’re over or under. One drink too many, and you’re considered a criminal, one less and you’re a law abiding citizen. Criminal liability in Canada only occurs with a blood alcohol level above .08. In Alberta, however, it is a Provincial Offence to drive with a blood alcohol limit above .05.  

Fail or Refuse: Physically unable to provide a sample into the breathalyzer. In some cases this occurs as the result of an underlying medical condition, or the police officer providing confusing instructions as to how to get the instrument to properly accept a sample. You must provide a sample or you will be charged with refusal. A conviction for refusal has the same consequences as a conviction if you had blown over the legal limit or being visibly impaired. 

Implications

The expected consequences for being charged or convicted with drinking can be severe:

  • DUI is a criminal conviction, which results in a permanent criminal record. 
  • A conviction for a DUI will automatically register your name to the Canadian Police Information System. Your details will show up on police computer systems across the country, which may encourage future attention from authorities. 
  • A drunk driving conviction also enforces a one-year license suspension and driving prohibition: no driving anywhere in Canada for a minimum period of one year. In addition to this, the Alberta government passed a new law in August of 2012 which suspends your driver’s license from the moment you are charged (not yet convicted) with an impaired driving offence. This suspension lasts until we can get you into trial and deal with the matter. 
  • An ignition interlock device may be installed in your vehicle, and a condition placed on your license for a period of time after your DUI conviction. Your car will only start with the passing of a breathalyzer test (under .05 in Alberta).

Beyond this, a criminal conviction can lead to lost employment opportunities, travel restrictions or the psychological and emotional stigma and consequences of now being labeled a ‘criminal’. 

How Our DUI Lawyers Can Help

There is a lot we can do if you’ve lost your license from blowing over on a breathalyzer or have been charged with driving under the influence. Having our DUI attorneys review your case may be the difference between a criminal record and walking away.  

Strategies for Defence

Dunn & Associates has employed several techniques to fight DUI’s in the courtroom:

Questioning the Reliability of the Breathalyzer
Breath instruments are not infallible, and like all machinery or electronic devices, these instruments can and often do fail to record blood alcohol content accurately. If not properly operated or maintained, or uploaded with the incorrect software, they may give false readings. On your behalf we request the appropriate instrumentation documents and send them off for analysis to our expert. Any arising discrepancies or issues may result in the readings being thrown out of evidence due to their unreliability. 

Analyzing Varying Blood Alcohol Levels
Having a single drink or two shortly before getting behind the wheel may mean that your blood alcohol level at the time of driving, is different from your blood alcohol level at the time of testing (as over time, unabsorbed alcohol gradually enters your bloodstream). The breath samples used against you in court can only be obtained at checkstop locations or at the police station itself. Therefore we sometimes present the case that your blood alcohol level was in fact below the legal limit while driving prior to providing samples of your breath. Again, a trained expert may be used to extrapolate your blood alcohol reading and provide you with a defence at trial. 

Challenging Observations of Impairment 
Observations the officer makes with respect to what he/she believes to be ‘physical indicia of impairment’ may have many other feasible explanations. Poor balance may be the result of poor road conditions, slippery footwear, wearing heels or a knee or hip injury. Slurred speech can be the result of speech impediments, nervousness or being tongue tied. Red eyes can result from allergies, or cigarette smoke or fatigue. Unfortunately, it’s been our experience that officers often embellish their notes and investigations in order to make the case seem stronger than what it is. We can often expose this exaggeration with a vigorous cross examination from our lawyers. 

Employing Refusal or Failure
In some cases people are physically unable to provide an adequate sample into the roadside devices or breathalyzer machines. They may suffer from asthma or respiratory issues, they may have anxiety or be nervous, the police officer may be abusive or threatening, or provide confusing instructions as to how to provide a sample. Sometimes the breath instruments are simply not properly maintained or in proper working order and can’t even accept a sample. Based on our complete understanding of the specifics of your case and situation, we can take this approach where appropriate. 

Call us. We can help.

If you have been charged with drunk driving, driving high, ‘over 80’ or fail and refuse, our Calgary criminal lawyers are here to help. Whether a momentary lapse of judgment or being falsely accused of something you didn’t do, your freedom is our focus.

Latest News Of DUI, Impaired Driving

August 2015
CALGARY – An Alberta man has been granted full parole in a drunk driving case that resulted in the death of 17-year-old Brandon Thomas. Last year, 24-year-old Ryan Gibson had pleaded guilty to impaired driving following the December 2012 crash. Police said at the time Thomas’ vehicle collided with a pickup truck driving the wrong way down Highway 22 near Cochrane. Gibson’s blood alcohol level was twice the legal limit. Thomas’ mother was in court Wednesday, and... more
January 2015
  About two dozen people gathered Monday afternoon at the intersection where Kimberly Ellingson died on September 14th, 2013.   The 53-year-old Calgary woman was a passenger on a motorcycle that was struck by a Ford Taurus being driven by Kelsey Lynn Tallman.   Tallman initially faced six charges, including impaired driving causing death.   But the 21-year-old woman pleaded guilty Monday to a single charge of dangerous driving causing death.   Family and... more
January 2015
  A young woman has been sentenced to one year behind bars in connection with a fatal crash in Oakridge last fall.   21-year-old Kelsey Tallman struck a motorcycle in an intersection after failing to stop at a yield sign.   53-year-old Kimberly Ellingson was pronounced dead at the scene.   Her husband ‘dean’ suffered serious injuries.   Tallman was originally charged with several offences including impaired driving.   But she ended up pleading guilty to one... more