OHTA.ca

Hi There,

I got a ticket last Oct for driving with a class G2 license and blood alcohol level (0.01) over the limit (I'm over 30 years old)..

Here is the scenario, I had a glass of wine with dinner (around 8pm), then went out with the wife and the sister in law to drop the sister in law back home around 11pm..I noticed a police road block at an intersection and while I had the option/chance of going around it (take another road/back road) or even get the wife/sister in law to drive (both have G class licenses and not drinkers), I decided to go through the police road block since I haven't done anything wrong and that I'm within the alcohol limit..

I was asked if I had anything to drink, and I did say that I had a bit of wine with dinner, so I was asked to take a breath test which came up with 0.01. Even though the officer was reasonable and acknowledged that I'm OK to drive and that if I was on a G class license then I'd be more than ok, but he had to issue me a ticket $85 (total $110), since that's the law - the wife had to drive from that point onwards..

Throughout the night I was thinking about the scenario, I mean 0.01 how accurate is that? I had to blow in the dam thing twice!! also, if your dinner is marinated with wine or if you have one of those liqueur chocolates then that's prob your 0.01 alcohol, or am I wrong??

The wife told me to take this to court and see if I can get the charges reduced reduced or even having the case discharged/dismissed, so I took this to court with the plead of guilty with explanation..

Here are my questions:

1. Can I change my plead to not guilty?

2. I asked the officer if there are/will be any points involved and he said no.. So, in that case, what is the fine? just the $110?? is there a license suspension? also would that affect my insurance? I haven't had any tickets/offenses before..

I guess I'm trying to argue the fact that I was fully capable of driving and making very good decisions and that I wasn't endangering anyone while I was on the road, and the fact that I had 2 fully sober licensed drivers with me at the time.. I'm also getting my G license in few days time (hoping that when the court is due, I'll be a fully licensed driver).

My court is in May, should I get a paralegal advise? may be an ex-copper?

Would really appreciate the help here.

Thanks

1) Yes, though I would contact the Court office ahead of time. They'll need to book more time for a full trial and make arrangements to have the officer attend.

2) No points, but I believe you receive an additional 30 day suspension upon conviction.

Throughout the night I was thinking about the scenario, I mean 0.01 how accurate is that? I had to blow in the dam thing twice!! also, if your dinner is marinated with wine or if you have one of those liqueur chocolates then that's prob your 0.01 alcohol, or am I wrong??

While it's not an incredibly high reading, it's not insignificant. If your BAC is 0.05 your licence gets suspended and at 0.08 you get charged criminally. That reading would be a normal BAC after one drink. If you had actually waited 3 hours after your drink, your BAC definitely should have been zero. That makes me think you had more then one glass, or it was some very strong wine. As for a marinade or chocolate liqueurs, they shouldn't have any significant impact due to the relatively low amount of alcohol in them.

As for accuracy, the roadside screening devices are pretty good. The most likely scenario for a false positive is residual alcohol in your mouth (i.e. you took a swig of whiskey right before providing a sample). That's why police ask if you've had anything to drink in the last 15 minutes before you provide a sample.

I guess I'm trying to argue the fact that I was fully capable of driving and making very good decisions and that I wasn't endangering anyone while I was on the road, and the fact that I had 2 fully sober licensed drivers with me at the time.. I'm also getting my G license in few days time (hoping that when the court is due, I'll be a fully licensed driver).

I don't see that being a defence. You're not being charged with impaired driving, simply contravening the condition that you have no alcohol in your system.

I'd suggest consulting a paralegal. The most common defence I see for this type of charge is arguing that either the officer didn't have grounds to make the demand (doesn't sound like the case based on your admission) or accuracy of the testing instrument. The other option is to see if they'll offer you a plea deal to a different offence that doesn't carry the suspension.

Thanks for your prompt reply Stanton, much appreciated.

"I believe you receive an additional 30 day suspension upon conviction" - this is my biggest concern; also, how would this effect my insurance?

I just had another look at the "notice of Trial" I have received earlier on and it does say "This will confirm that you have chosen to challenge the evidence of the Provincial Offences Officer ...ertc.. You and your witnesses should be ready for your trial at that time".. I'm guessing I am set for a trial on the given date/time..

Realistically speaking, what are my chances of reducing this charge to a minor offense?? I don't mind paying the $110 even though I still feel hardly done by, but it's the suspension and ultimately the insurance hike that I'm worried about.

Would really appreciate your input.

Thanks

Typically any suspension resulting from a conviction will impact insurance.

I honestly don't know what your chances are of pleading out to something else. It really varies depending on what region you're in and what Crown you're dealing with.

Fight this one tooth and nail.

My brother got handed the same ticket with the same breathalyzer result. He paid it off, and was surprised when he got hit with the 30-day suspension, and even more surprised when the insurance company told him they considered it to be on par with a DUI. He just got back onto insurance after 3 years.

There is a lot more to this ticket than the fine. Personally, coming from a measurement background, I think that a 0.01 reading is too susceptible to false readings, but that doesn't seem to stop these tickets from getting handed out at that level. It would be one thing if it was just the fine, but everything else that seems to go along with it is a little on the overkill side.

Anyways, do what you can to fight this one. Good luck.

z24guy - Any idea how much your brother's insurance went up by? E.g did it go up %50? %100?

Also, guys any ideas on how to fight this apart from the faulty reading? anyone experienced/went through this before please?

Generally speaking would the prosecution try to work out a deal with you before taking this to court? or would they be an absolute pain and try to prove you're guilty period?

Thanks

How much your insurance goes up will really depend on your insurance provider and policy. Rough estimate is anywhere from 50% to 300%.

There's not really much to fight the charge on other then charter violation or calling the reading into dispute.

For a charter violation, you'd have to argue that the officer didn't have the grounds to make the demand. As police only require a reasonable suspicion that you've been drinking, the threshold to make the demand is pretty low. I don't think this would be an option though since you admitted to the officer that you were drinking, which would be more then sufficient grounds to make the demand.

As for questioning the reading itself, you'll want to request disclosure. The Centre for Forensic Science requires that the screening devices be calibrated on a biweekly basis. You'll want to see if the officer noted when the device was last calibrated and by whom. If there's no evidence of calibration, the validity of the reading can be brought into question. The officer should also be able to say that he ensured you hadn't consumed any alcohol 15 minutes prior to performing the test, to avoid a possible false reading. There's other ways to question the reading, but most of these defences are probably best left to a paralegal. And again, none are guaranteed, and most officers are pretty good at covering all the bases.

Not sure, he's a university student, so he's still on my folks insurance, but my parents were basically told that they needed to take him off the insurance, or they wouldn't be covered until the conviction came off the record.

I agree with Stanton, grab a paralegal, and go after the reliability of the device. Also grab the calibration and maintenance records for the calibrator, the certificate of conformance for both the breathalyzer and the calibrator, any and all regulatory conformance documents, etc. See if there are any published papers that demonstrate the breathalyzer being fooled by mouthwash, non-alcoholic beer, cooking alcohol in food and deserts, etc.

Basically, there are three ways that I see for you to approach this. One, ask for a ton of disclosure, and then ask the prosecutor very nicely to drop the charges. Two, provide enough reasonable doubt in the jp's mind by presenting false readings examples. Three, overload the prosecution, and try for an 11b.

I'm not a lawyer, but that's the approach I'd try.

If you request disclosure and you get the calibration dates which you most likely will, it would be hard to argue that point.

If the officer didn't note the Calibration date, all they would need to do is subpoena the officer that did that calibration.

I would suggest first attendence and try to get the charged changed to drive motor vehicle in contravention of conditions which does not have an automatic suspension

Thank you all for your replies, I really do appreciate all your efforts. I will try to go through any material I can get my hands on to question the device's reliability..

One last question please, who do I need to contact to request disclosure of the officer's notes? Would that be the court itself?

Thanks

These have been tested over and over in criminal court by some of the best criminal lawyers. They are reliable. Mouthwash can be accounted for. If there was mouthwash present you would have blown a "F" and been arrested and taken to the full breathalyzer which by the time you got to that location would have left your mouth thus producing the .01 that you blew leaving you with the same result. Cooking alcohol has no effect unless you were drinking it from the bottle then it has the same effect as regular alcohol.

The calibrator is the mouth of the officer doing the calibration there is no certificate of conformity. In Ontario it has to be a designated breath tech and a breath techs designation never expire.

This will be one of the hardest to beat as the law says zero alcohol. The instrument showed that you had alcohol. It does not matter how much or that you were not drunk. It is zero.

Disclosure for a breath tech is two pieces of paper. One that shows the date we were gazetted( where our qualification and designation comes from) and the second is when we did the calibration check, here we do them weekly and affix a sticker to the side with the date and signed by us. So there is not a lot of disclosure with regards to the instrument or the BT. Since the instrument is actually mentioned as an approved screening device in the criminal code the JP's just accept it as is. Being approved means it has under gone year of testing at the center of forensic sciences(Ontario) and is now shown to be accurate and reliable.

OPS copper

Oh and fyi I am a designated breath tech and have be questions in criminal court on this by the best this city has. The reliability and accurateness of the instrument has always held up.

I agree with Paul1913, see if there is another charge you can plead to. Even if the fine is higher, it's much better than dealing with the issues that go along with G2 >0.

OPS Copper -- "The calibrator is the mouth of the officer doing the calibration there is no certificate of conformity."

That's not a calibration, that's a zero check, and a poor one at that, considering the variables associated with different peoples breath, should be using a compressed "standard" gas. A proper calibration requires that the unit be compared to an instrument 5 - 10 times more accurate by a certified calibration tech, and that the entire calibration procedure be traced back to an Industry Canada standard. Anything less than that could be considered a "check", but definitely not a calibration.

A certificate of conformity is a document issued by any ISO9000 company that certifies that the equipment was manufactured as per the documented QA program. It will also contain the initial calibration. They're available, and (at least for speed measurement) considered a requirement for the categorization as a prima face (sp?) instrument.

I swear if these instruments were held to the same standard as industrial instrumentation, the police forces would be fined out of existence.

Oh and fyi I'm an industrial instrumentation professional with over a decade of experience with certification, compliance and calibration. From my experience, the only reason the reliability and accurateness has held up is because the prosecution chickens out when they're up against someone who knows what they're talking about.

It is more complicated than just blowing but that is getting into a technical realm that would bore most in here. I can explain it in PMs if you want to know.

I was just saying that going after the reliability of the instrument maybe futile as it has been tested in criminal courts by some of the best lawyers who have employed the best scientists in north America.

Sarah80,

I think, based on what you've stated here, you have two possible options: 1. Try to plea with the prosecutor to a lesser charge, reduced fine etc., and take this experience as a lesson. And 2. Given the likelihood of a fine, as well as the added cost of an insurance hike, you can hire an extremely experienced paralegal/lawyer to handle your case.

This case sounds like it would be an uphill battle for a paralegal/lawyer, but depending on how cutthroat they are/the officer's notes and recollection, as well as the specific roadside screening device and its margin of error, calibration etc. etc., you MAY [and it's a tiny possibility] be able to fight the charge successfully.

The problem here is that you openly confessed to consuming alcohol to the officer, giving him reasonable grounds in conducting the roadside screening. Your G2 class restrictions also make this a hard case, since you should not have consumed alcohol regardless of whether or not you felt competent to drive. The open confession would need to be deemed admissible via a voire dire hearing, and again, this is where an experienced paralegal may help. Finally, depending on all the details, you may or may not have a case worth pursuing. For example, how many times was a test administered? Did the officer ask for multiple samples given the device, its margin of error? All things to consider.

Finally, there's the 11(b) option. You can find plenty of information on it within these forums as well as on ticketcombat.com 's website. Good luck!

z24guy wrote:OPS Copper -- "The calibrator is the mouth of the officer doing the calibration there is no certificate of conformity."

That's not a calibration, that's a zero check, and a poor one at that, considering the variables associated with different peoples breath, should be using a compressed "standard" gas. A proper calibration requires that the unit be compared to an instrument 5 - 10 times more accurate by a certified calibration tech, and that the entire calibration procedure be traced back to an Industry Canada standard. Anything less than that could be considered a "check", but definitely not a calibration..

In no way is it a zero check.

The ASD is calibrated with alcohol at a known Alcohol Standard.

The testing procedure is from CFS.