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What is an Impaired Driving - Over 80 - Fail to Provide Sample Charge

The charge trio of Impaired Driving/Over 80/Fail to Provide Sample constitute some of the most common criminal offences in Canada, and have severe mandatory minimum sentence consequences where it's impossible to avoid a criminal record and a minimum one year driving prohibition if convicted. Subsequent offences see mandatory minimum prison terms kick in.

These are among the most challenging criminal charges to successfully defend because Parliament through amendments to the Criminal Code has eliminated many of the previously available defences. 

Why Defending an Impaired Driving-Over 80-Fail to Provide Sample Charge is Important

Defence counsel can still play a very important role in protecting your rights when charged with these kinds of offences. Although there isn't much room to negotiate a resolution with the Crown, obtaining and painstakingly analysing disclosure for flaws in the prosecution's case and vigorously defending your rights at trial can lead to your acquittal.

We likely see more seemingly "defeated" impaired clients than for any other kind of offence, who don't think they have any options. You do in fact have options, and important choices to make when charged with one of these offences. 

You can only make an informed decision on what's best for you after receiving legal advice on your case, not by relying on potentially ill-informed assumptions. Some clients retain us solely to provide a legal opinion on their case prospects, based on detailed analyses of all of the evidence, so that they can decide for themselves whether to hire a lawyer to assist them in court. 

How to Defend an Impaired Driving-Over 80 Charge: 6 Reasons to Take a DUI to Trial

1. The police didn't have grounds to demand a breath sample

Truly random breath testing remains illegal in Canada. It's a Charter violation for police to demand a sample without any grounds. 

2. Samples were taken too long after observed driving

There are strict rules on within what time window samples must be taken. Miss that window, and the charges should be thrown out due to inadmissible evidence.

3. Rights to counsel were violated

While you don't have a right to a lawyer prior to a police demand for a roadside screening sample, you do have a right to legal counsel prior to giving an official breath or blood sample back at the police detachment. 

4. The testing technology was not working or the testing was improperly administered

Science is never perfect. And accurately measuring blood alcohol levels remains a science. Machines need to be properly calibrated. Testing protocols need to be strictly followed. Knowledgable defence counsel can make extensive disclosure demands that may expose flaws in the technology and procedure, and retain an expert witness on your behalf to demonstrate to a court why those flaws raise a reasonable doubt about guilt. 

5. There's little sentencing downside in taking an impaired charge to trial

True, there will be some expense and waiting for the trial to be concluded. But the risked penalty to be imposed after a conviction at trial will often be about the same as the penalty the Crown offered on an early guilty plea. Because of the mandatory minimum penalties imposed by Parliament, rather than being left to the discretion of the Crown and judge, there is very little room for defence counsel negotiations on impaired charges. 

6. Impaired charges are less expensive to take to trial

Even with expert costs, impaired charges are less expensive to defend than many other criminal charges because of the brief nature of the trial based on brief factual events. A trial can often be completed in one to two days of court time.