Toronto Criminal Lawyer - Impaired Driving and over 80 charges dismissed

Seth's Case — Impaired Driving & Over 80 — Dismissed

Client:  Seth, Accused
Complainants:  Tammy Maclean, ex-girlfriend; Cobourg Police Service
Charges:  Impaired Driving, Drive Over 80, and Forcible Entry

Background: Seth just had his driver's licence reinstated, having lost it for a year as a result of his first drinking-and-driving conviction. He now found himself out drinking and driving again. Having just come from a local pub, he found himself at the doorstep of an ex-girlfriend that he hadn't seen in about two years. Without knocking, Seth entered. He is confronted by her and then her boyfriend, and eventually drives away. They call the police. As the police arrive, Seth is returning to her house. The police arrest him. Seth provides breath samples indicating a blood alcohol level of 270 and 280 milligrams of alcohol in 100 millilitres of blood. He is then charged with "drive over 80" and with being "unlawfully in a dwelling." Later, the Crown withdraws these charges, and proceeds on charges of "impaired driving," "drive over 80," and "forcible entry." If convicted of either driving offence, Seth was facing a minimum of 14 days in jail, a three-year licence suspension, and a three-year ignition lock-out condition.

Goals: Seth tells me that he cannot go to jail. He can handle the suspension, but he will lose his job and his new home if he goes to jail. My instructions are to plead him guilty if there will be no jail. Failing that, we are to fight the case to the bitter end in an attempt to beat all charges.

Strategy: Due to Seth's high alcohol readings and his recent conviction for drinking and driving, the Crown was not sympathetic. They absolutely refused to consider any resolution that avoided Seth going to jail. That left us with one option: to go to trial. I assessed our chances of beating all charges in the "slim" to "none" category. When I explained that to Seth, he asked me if there was "any chance at all of winning." "There's always a chance," I responded, "as you can never predict exactly how the evidence will come out, and you can never predict exactly how the Judge will react to that evidence." So, on a hope and a prayer, we scheduled the trial, and I set down to work.

Results — Round One: I assessed as "very high" the Crown's chances of proving at least one of the charges at trial. That being the case, I looked for another angle that might result in all charges being nixed. The trial was scheduled to take place at the Ontario Court of Justice. The next higher level of Court in Ontario is the Superior Court of Justice. I applied to the Superior Court to have all charges dismissed because of defects in the way the charges were laid — more correctly, I brought a certiorari application to quash the charges. I was partly successful. The forcible entry charge was quashed. That result left us with the two drinking and driving charges.

Results — Round Two: Going into the trial, we knew our chances of beating both charges were not good. Seth had to give much thought to at least the possibility of going to jail. That said, we had still committed ourselves to giving it our all, as I firmly believe that a 1% chance of winning requires 100% effort and commitment. The proceedings went into the late evening. Although I felt the trial was going well, I wasn't certain that the Judge would acquit on both charges. At about 7:30 p.m. — the latest I have ever sat in any trial — the Judge gave his decision. The charges were dismissed (you can review the the details in the link below). To some extent, it was a surreal experience, and even the Judge commented that he was surprised at the result (see paragraph 29 below). Seth needed two days to absorb the result.