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Impaired Driving

Edmonton Criminal Lawyer Ziv > Impaired Driving
07 June
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Impaired Driving: Legal Update, June 2024

Posted by Andrew
in Impaired Driving

This week Leman v Alberta (Director of Saferoads), 2024 ABKB 332 was issued by Justice Marion. Some of our successful cases were relied on to reach the conclusion that the adjudicator in the case erred in his reasoning process when he found that the motorist was served a Notice of Administrative Penalty “NAP”. 

Justice Marion cited Russell v Alberta 2023 ABKB 20 and Ngomesia v Alberta 2023 ABKB 57 both Ziv Law Group cases.

In this case the motorist, known as a Recipient, argued that he was not served a NAP a statutory requirement. When he woke up in the morning, he checked what documents he had received, and they did not include a NAP. The adjudicator held that he accepted that the motorist was served a NAP despite there being silence on this issue by the police officer. The adjudicator felt that because the motorist was drunk he could not accept his evidence. The problem with this reasoning was that the time frame at issue, the morning after was not the time the Recipient was impaired at. 

This case is useful because it confirms that there must be personal service of a NAP. Implicitly, service does not count as seeing a NAP on the portal. There must be functional service of the NAP (presumably) before a roadside appeal offered. 

The case is also useful because it lists the types of errors that lead to unreasonable decisions. These errors include (cited verbatim): 

  • treats the police (or the recipient’s) evidence as presumptively true, credible or reliable, or having a baseline of credibility;
  • presumes or assumes police compliance with statutory requirements;
  • fails to assess the weight that should be accorded to police evidence in light of legitimate credibility concerns;
  • requires or implies that a recipient must rebut all aspects of the police’s evidence, must have a verbatim recollection of the events, or must adduce a certain type of evidence to be successful;
  • starts with an assumption that the recipient’s evidence is untruthful; fails to account for or consider cogent evidence before it, including all the evidence of a recipient’s explanation or evidence from the passengers;
  • fails to resolve central credibility and reliability issues arising from the evidence; bases a credibility assessment on matters not grounded in the evidence;
  • makes inferences based on conjecture, speculation, or unfounded assumptions, or where there is no evidence to support them;
  • or makes findings based on, or relies on, evidence that is not actually before the adjudicator.
20 April
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Rory Ziv: Top 3 DUI Lawyers in Edmonton, AB

Posted by pantelis
in dui, Impaired Driving, lawyer, ziv
Rory Ziv Top Dui Lawyer

This year, Rory Ziv has been selected as one of the top 3 DUI lawyers in Edmonton Alberta by Three Best Rated® (CANADA). He is proud and extremely honoured to have been selected as one the top 3 local DUI lawyers in Edmonton because, for decades, Rory Ziv has been diligently representing individuals from all walks of life who have been facing DUI charges. 

An Impartial Evaluation

This ward is a true honour because Three Best Rated® (CANADA) aims to find the top 3 local DUI lawyers by conducting thorough checks and reviews of prospective candidates. They conduct a 50-Point Inspection which includes business’s reviews, history, complaints, ratings, nearness, satisfaction, trust, cost, general excellence, and reputation. Most importantly those awarded do not pay Three Best Rated® to list them. The award-winners are listed for free because as they say “…if you can pay to list, then is it really the best business? No Pay to Play!”

Best Dui lawyers in Edmonton

Rory Ziv is excited to be among the Top 3 local DUI lawyers in Edmonton since the years of hard work he has spent defending individuals charged with impaired driving offences have been recognized not only by his clients but also but an impartial third party. 

What Makes Rory Ziv The Right Choice For You

As the founding and managing partner of Ziv Law Group, Rory Ziv is a highly sought-after DUI and criminal trial attorney. He is well-known for his extensive preparation, attention to detail and considerable knowledge of the provincial and federal criminal code. However, what characterizes Rory Ziv as a top DUI and criminal lawyer is his relentless, unshakeable and passionate advocacy on behalf of his clients.

Rory Ziv has always known that being charged with DUI can be intimidating, that is why he carefully assesses the case against his clients and works with them to obtain the best possible result available, whether that is a withdrawal of the charge, a reduction at sentencing or even a full acquittal at trial.

If you are ever charged with DUI or any other criminal offence, it is important to call our office as soon as possible at 780-686-7948 because you deserve the best defence possible!

08 June
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NEW IMPAIRED LAW COMING

Posted by Rory
in dui, Impaired Driving

 

Alberta’s Proposed New Impaired Driving Law

[1]          About ten years ago British Columbia implemented a new legislative scheme whereby impaired drivers were not charged criminally if they were caught by police drunk driving. The trade off to not charging a person criminally was that a police officer was given the power to suspend a person’s license on the spot. A major criticism of this legislation was that the police officer, in effect, became “judge, jury and executioner”. Last week Alberta introduced similar legislation.

[2]          A typical investigation runs something like this: A police officer stops a vehicle and if he suspects the driver has been drinking, he administers what is called an approved screening device “ASD” test on the driver. The ASD is an instrument that collects a person’s breath sample. If the breath sample analyzes higher than a certain amount, typically “over 80”, the police officer has the authority to suspend the driver’s license license immediately.

[3]          Under Alberta’s proposed new law the “Provincial Administrative Penalty Act”, for first offenders, this will mean an automatic license suspension of 15 months. The driver will be allowed to drive again after 3 months with a “blow-box” which is costly. There will also be a fine issued of $1000.00, a vehicle seizure with associated impound fees, reinstatement fees and courses to take. In addition, there is a major silent cost. The cost of insurance premiums increasing.

[4]          A chief concern regarding this new regulatory scheme is proper oversight.  At the road side when a police officer is administering an ASD test there needs to be a process that ensures that the testing that is conducted is accurate. The Supreme Court of Canada in R. v. Goodwin 2015 SCC 46 recognized that ASD’s can register false positives.

[5]          For the scheme to be constitutionally sound police may have to inform drivers that if they fail an ASD test they are entitled to provide a second sample into another ASD to verify the accuracy of the first test (Goodwin paras 77 and 84).

[6]          Another method of ensuring further police accountability it to video record the taking of breath samples. Currently, RCMP policy is to record driver stops. However, other police services in Alberta do not have this recording requirement. I suggest this recording policy needs to be implemented uniformly in all Alberta.

[7]          Under the new legislation, if a driver is given a roadside suspension “a notice of administrative penalty” they will have 7 days to challenge the suspension. The review process is intended to move swiftly with one adjudicator deciding whether to confirm or cancel the administrative sanction within 30 days of the suspension. That adjudicator’s decision would also be subject to further judicial review.

[8]          The Government has touted the new legislation as being more effective in combating impaired driving both in terms of ‘cost of litigation’ and ‘reduced occurrence of impaired driving’. Police resources will increase because police officers will spend less time processing impaired drivers and less time in court. Furthermore, Crown Prosecutors will have more time to focus on serious cases.

[9]          Is this process fair? The issue has largely been decided by the Supreme Court of Canada in the Goodwin decision cited above. A case by case analysis will be required to determine if an issued suspension is valid.

04 February
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Approved Screening Devices

Posted by Rory
in approved screening devices, as soon as practicable, Defences, Impaired Driving, Intoxylizer Operation

Approved Screening Device

 

Calibration Logs

For many years I have been thinking about ways to challenge approved screening devices “ASD”.  In R. v. Black 2011 ABCA 349 I was a able to take a case all the way up to the Alberta Court of Appeal on a very interesting issue. I suggested that I was entitled to copies of calibration logs for the devices. At that time every two weeks the approved screening devices were calibrated before being used in service.

When one examined the logs it appeared that the devices they were using then the Intoxylizer 400D  were very unstable. In other words calibration records showed that the devices were sometimes off by as much as 30%. Practically what this meant is that someone with a Blood Alcohol Level of only 70 mg was being arrested because the ASD thought they were 100 mg. This I argued was akin to an arbitrary detention.

The Albert Court of Appeal said that the defence were not always entitled to the logs in a 2:1 decision. The logs were not relevant unless the officer knew the device was faulty. The officer could rather ely on a calibration sticker on the device itself. The exception to this rule was if the calibrator was also the investigating officer. Then the logs were producible.

In any event, shortly after this decision I then argued that if I wasn’t allowed the logs then I was entitled to see the calibration sticker on the ASD. I won a case when this wasn’t provided to me using the Court of Appeal’s reasoning in Black.

Waiting Time

Another very useful decision I came across recently was R. v. Bergen 2014 M.J. No 122. I suggest every impaired driving lawyer have this case handy.

In that case the officer chose to wait 15 minutes before administering the ASD because he saw the Accused pull out a bar and was concerned he may have consumed alcohol within the past 15 minutes. He did not ask the accused and had no specific reason to believe the accused had consumed alcohol within the past fifteen minutes. On appeal the conviction was overturned.  If an officer in those circumstances is not required to wait 15 minutes to administer an ASD, when he see’s a person leave a bar, why would he be required to wait 15 minutes without anything more?

This is an excellent decision on law and

26 November
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Alcohol

Posted by Rory
in as soon as practicable, Defences, Impaired Driving

Taking Samples — Impaired Driving

Case Comment
R. v. Cole 2015 SKPC 109
A recent Saskatchewan Provincial Court decision applies some very important law concerning taking samples “as soon as practicable”.
When the Crown attempts to prove that someone\s blood alcohol limit is “over 80” they usually can do it one of two ways. Remember, the taking of a sample to determine the concentration of blood in a person’s body only tells you what their alcohol level at the time you the test is taken – not at the time of driving.

(1) The criminal code has evidentiary short-cut that allows a court to conclude that the blood alcohol of a person at the time of driving is or was the same at the as the time the test is taken. This is called the presumption of identity. In order for the presumption to apply several things need to be proven including: that each sample was taken “as soon as practicable after the time when the offense was alleged to have been committed”;
(2) Alternatively, the Crown could call an expert to extrapolate times back from when sample taken to when offense was alleged to have occurred.
In R. v. Cole, a classic defense was raised. Mr. Cole argued that samples where not taken as soon as practicable because the police officer’s waited for a tow truck before transporting the accused back to give a sample.

The judge concluded that it was not necessary for both officers to wait for the tow truck because the car was parked in a safe manner only a few blocks from the police station. Also, they could have called another police officer to assist, they could have waited to have his car towed and there were no passengers that had to be dealt with.
Although the delay in this case was short (12 minutes) the judge determined that the police did not act reasonably in the circumstances.

The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably (para 12 R. v. Vanderbruggen [2006] 206 CCC (3d) 489 Ont C.A.

Therefore, the Crown were not allowed to use the presumption of identity. The Crown then asked the judge to take judicial notice of the fact that the accused’s blood alcohol would not have been that different from the time of driving to the time the test was taken. He was not prepared to do that. The Crown needed to call an expert and they failed to do so.

07 October
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Refusing to provide a breath sample

Posted by Rory
in Impaired Driving

Refusing to Provide a Breath Sample

When stopped by police and asked to provide a breath sample into an approved screening device, should you comply?

As a general rule the answer to this question is “yes”. A police officer requires very little grounds to demand that you provide a sample of your breath into an approved screening device. The law currently in Canada states that all that is required for him/her to have grounds to demand a sample of your breath into an approved screening device is reasonable suspicion to believe there is alcohol in your blood.

How does the officer form this suspicion? There can be many different ways depending on the circumstances.

Admissions

Firstly, the officer may simply ask “have you had anything to drink”. If the answer is yes and this answer can be linked temporally to your driving then that would be enough grounds. In the leading case in Alberta R. v. Flight 2014 ABCA 185 at paras 58 and 61 the following law was pronounced:

In this way, Hnetka is distinguishable on its facts. The driver in Hnetka said that he had something to drink “a while ago.” Where a driver qualifies an admission of consumption temporally, this alone may not be sufficient to ground a reasonable suspicion: see R v Kimmel, 2008 ABQB 594 at paras 34-35, 459 AR 95. Each case must be assessed on its own facts.

In summary, I conclude that in most cases, admission of consumption alone will be sufficient to ground an objectively reasonable suspicion. Reasonable suspicion is a low standard. Police officers are not required to inquire into an alcohol consumption history with a driver at the roadside. However, each case must be assessed on its own facts. Police officers must respond to information as it unfolds.

Indicia

If a motorist does not admit to drinking an officer may still be able to smell alcohol on a motorist’s breath. If the officer is able to convince the trial judge (and on this point he usually can, although, my office has had success in convincing a judge that the officer was mistaken on what he smelled) that he smelled alcohol then that would be enough.  Other indicia would include and accident; slurred speech; blood shot eyes; poor balance and co-ordination etc. etc.

The bottom line

A peace officer needs very little to demand a sample of your breath into an approved instrument. Only unless you are convinced beyond certainty that the officer is simply on a pure fishing expedition without any grounds whatsoever can you refuse in law. This course of action is risky. A refusal conviction is akin to an impaired conviction.