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

Client:  Sally B., Accused
Complainant:  Ontario Provincial Police, Kawartha Lakes detachment
Charges:  Impaired Driving, Over 80, Drive Disqualified, Drive While Suspended

Background:  Having run her car off the road, Sally was found in an intoxicated state with nine cans of beer within hand's reach. She was charged with impaired driving (being drunk while driving) and with over 80 (having too much alcohol in her blood). Her readings were 192 and 200 mgs/100 ml. Since Sally's licence had been suspended from an earlier impaired-driving conviction, the police also charged her under the Highway Traffic Act with drive while suspended. Later, the Crown decided to withdraw that charge and add the more serious criminal charge of drive while disqualified. If we lost even one of the three, Sally would be going to jail and would lose her licence for at least three years.

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Goals:  Sally wanted to beat everything; if not, she wanted to at least stay out of jail. Not being a Canadian citizen, and with immigration breathing down her neck, she desperately wanted to avoid being convicted. She soon would be eligible for a pardon on her earlier conviction. If convicted again, she would have to wait another 5 years.

Strategy:  Given Sally's criminal record, the accident, and the high readings, we were in for a rough ride. To top it all off, Sally had a "history" with the local police. She had twice before run a car off the road while drunk. This was the first time they had enough evidence to charge her. Sympathy was neither sought nor given. Our only chance was to fight and win. The evidence against us was strong but not overwhelming. There were two issues I hoped to finesse at trial. We scheduled a two-day trial. Months passed.

Results — Trial Postponed:  Neither Sally nor I were feeling confident the morning of the trial. Sally knew that our Judge had been the victim of a drunk driver some years earlier. She thought he would go "against her." For my part, I could smell alcohol on Sally's breath from quite a distance. Neither fact was a good omen. As it turned out, it was much ado about nothing. The Crown asked for and received an adjournment. More months passed. On the morning of the second trial date, the Gods were with us. Success came in two stages.

Results — Drive Disqualified:  Prior to trial, I filed a special application to argue that the additional drive-disqualified charge was not properly before the Court. This was a technical argument similar to the one I had advanced before Judge Salmers in SETH'S CASE. I never got to argue it. As the trial was about to start, the Crown abandoned that charge. They decided to focus on their meat and potatoes — the impaired and over-80 charges.

Results — DUI Charges:  Into the first day of evidence, two problems emerged for the Crown: they might not be able to prove that Sally was the driver, nor could they prove that she was in "care or control." Though Sally had admitted to the police that she was the driver, I brought a Charter application to exclude her statements. That application was solid. The Crown's case hinged on the tow-truck driver. His evidence wasn't unfolding as the Crown had hoped: (i) he testified that the car was inoperable; and (ii) Sally never admitted to him that she was the driver. We now had the upper hand. If we continued the trial, I felt confident of success. But the trial was not over. I could not guarantee a win. Sally's primary goals were to avoid jail and a further conviction. Everything else was a distant second. For that reason, I approached the Crown with a proposal: allow Sally to plead guilty to careless driving under the Highway Traffic Act for a fine, probation, and a licence suspension. The Crown agreed. The Judge approved.

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