4. Figure out if you have a defence
Question & AnswerI’ve been charged for driving under the influence of alcohol or drugs. What do I need to know?
You can defend yourself in a criminal by showing:
- the Crown has not proven all of the elements of the crime
- your situation fits into a legal defence in the Criminal Code
- your Charter rights were violated
For a driving related to alcohol or drugs, you may also have a defence if:
- The police officers' demand for your breath sample or body-fluid sample was not given properly. The police can only demand that you do a breath test or give a body-fluid sample if they think you've been driving within the past 3 hours.
- You were not planning to drive the vehicle, or the vehicle was not in a condition where you could actually drive it. For example, you were just sitting in the car to warm up while waiting for someone else to come pick you up. These situations are legally complicated. You should talk to a lawyer if you plan to use this as a defence.
Think about what you can use to present your defence. Evidence might include:
- documents, such as receipts
- photos or videos
- witnesses who saw the incident
- telling your version of the story in court
The Charter of Rights and Freedoms says that you have certain rights when you're dealing with government. The government includes the police, the Crown, and the courts. For example, the police must:
- not search you in an unreasonable way
- not use excessive force against you
- not or you without a good reason
- help you contact a lawyer if want one
- explain why you're detained or arrested
If any of your Charter rights are violated, the judge can throw out certain evidence in your case. In some situations, the judge may even dismiss your charges completely, for example, if it takes too long to give you a trial.
Charter violations are particularly important for driving offences. It is often very difficult to win a driving case unless you can prove your Charter rights were violated. The Steps to Justice website has more information about your rights while driving.
It can be legally complicated to discover Charter violations and know how to present them in court. It's best to talk to a lawyer before your trial to find out if there are Charter issues and how to deal with them.