The enclosed article contains general legal information about defending charges of Impaired Driving, Over 80 etc. in Alberta.

DUI Impaired Driving and OVER 80 – 403-585-1960

Mr. Patel is considered to be a formidable and strong advocate for the Statutory and Charter rights of clients who have been charged with DUI in Alberta and Ontario.  The enclosed article contains general legal information about defending charges of Impaired Driving, Over 80 etc. in Alberta and in Ontario.  While the law governing impaired driving is under the the Criminal Code, which applies to all of Canada, there are subtle differences in the case-law between the two provinces.  Those looking for specific information about a matter that is or about to be brought before the Courts should consult with a criminal defence lawyer immediately. This article provides legal information about the above captioned area for offences in Alberta or Ontario. It is not intended to be used as a substitute for proper legal advice.

Criminal Code of Canada

Our criminal defence lawyers defend a significant number of cases involving everyday people charged with impaired driving and over 80 charges pursuant to the Criminal Code of Canada. When charged with a driving related offence, it is crucial to obtain prompt, knowledgeable advice on the defences that you may have to your avail to fight these cases as they are technical nature and thus mandate a specialized knowledge of law. Mr. Patel was employed as a crown prosecutor in the Criminal Driving Unit at Alberta Justice – Calgary Prosecutions. He prosecuted impaired driving cases on a full time basis for the government. He has secured has specialized knowledge and training of Impaired Driving, Over 80 and DUI Law and cases. Our criminal law firm deploys an exhaustive approach in defending these types of charges – from exploring the legality of the traffic stop, possible weaknesses in the validity of the breath tests, to evidence to the contrary utilizing expert testimony of a toxicologist and vigorous cross-examination of the arresting officer(s). Our approach to defending our clients is predicated on thorough review of the facts, an exhaustive examination of all criminal law and Charterissues germane to the purported traffic stop (under the Traffic Safety Act or Highway Traffic Acts), with a view to developed a cogent theory in your case. Each case merits an individual assessment. We are a firm built on the foundation of significant trial success. You have a right to vigorous and effective defence when charged with a crime. Exercise that right by working with a trusted and focused advocate. Call our office at 403-585-1960 or contact us online at to schedule a consultation with our professionals. In the interim, we generally endeavour to provide you with as much legal information as possible.  Mr. Patel is considered to be a formidable and strong advocate for the Statutory and Charter rights of clients who have been charged with DUI in Alberta and Ontario.

The following is general information about the following areas of Impaired Driving Law:

  • Impaired driving pursuant to Section 253(1)(a) of the Criminal Code of Canada
  • “Over 80” pursuant to Section 253(1)(b) of the Criminal Code of Canada
  • Dangerous driving – Pursuant to Section 249(1) of the Criminal Code of Canada Careless driving

Kay Patel Mahoney – Impaired Driving Team – at 403-585-1960 or 1-888-695-2211

At the law office of J. S. Patel, Barrister, we are proud to be part of one of the leading criminal defence law firms in Calgary, Alberta, Kay Patel Mahoney –  Barrister’s Chambers.  We have established a reputation throughout Alberta based on our ability to take on any criminal case — regardless of complexity — and our record of proven results.*

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To retain one of our experienced criminal defence lawyers for your impaired driving defence, call 403-585-1960 or 1-888-695-2211 or contact our office online.

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Impaired Driving Law:

A. Impaired Driving Under Section 253(1)(a) of the Criminal Code of Canada

Impaired driving charges can stem from any substance, chemical or condition that is deemed by Royal Canadian Mounted Police or the Calgary Police Service to impair one’s ability to operate a motor vehicle. These cases commonly involve drinking and driving, but increasingly, these charges come as a result of allegations that the accused was under the influence of illegal drugs or even legal prescription medication, which involve an intricate knowledge of drug recognition expert systems deployed by law enforcement. Often the relevant policing agencies (i.e. the Calgary Police Service, the RCMP or Edmonton Police), charge an individual with impaired driving when there are patent signs of impairment which is often discerned by motor incoordination. Such signs of impairment could include: staggered gait, an inability to walk straight, slurred speech, an odor of alcohol on your breath, a motor vehicle collision. The case-law dictates that the Crown Prosecutor’s office is required to establish impairment by alcohol on a “slight to great” standard.

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If you or someone of importance to you  has been accused of impaired driving, our lawyers have the experience and proven record to provide strong criminal defence by cross examining the police officer’s on any purported signs or observations of impairment. .We have taken on a significant number of impaired driving cases since our founding and strive to achieve a desirable outcome for our clients. To get the knowledge, counsel and support you need, if you are accused of a serious impaired driving offence, call 403-585-1960 or email:

B. Driving while retainer Over 80 Milligrams of Alcohol per 100 Milliliters of Blood

The Criminal Code of Canada, law prohibits a driver from having a blood alcohol level over 80 milligrams per 100 milliliters of blood. This is the import of section 253(1)(b) of the Criminal Code. Evidence against an accused person is often compelled by way of an statutory demand for either samples of one’s blood or alcohol. In a prosecution of this nature, the evidentiary method often used by the Crown to establish criminal liability via breath or blood readings in the criminal range is to proffer and tender a “Certificate of Analyses” at the criminal trial. An demand for such samples is often made by the Calgary Police Service Member (or any other police officer). A demand is only valid if grounds to issue such a demand. The police must have reasonable and probable grounds to believe that a person’s ability to operate a motor vehicle was impaired by alcohol.

C. Breath Samples: Approved Screening Device Demands & Evidentiary Demands

In breath sample cases, police officer may demand that an accused person provide samples into an Approved Screening Device (the “ASD”). This device is used when the police have a reasonable suspicion to believe that there is alcohol in one’s person but do not have reasonable and probable grounds to believe that this person’s ability to operate a motor vehicle is impaired by alcohol. The police use the ASD when there are no indicia of impairment or driving evidence. Plainly put, the Approved Screening Device assists the officer in conducting the test to arrive at their grounds to arrest an individual, if the “Fail” of “F” result is obtained as a result of the test. The “Fail” or the “F” result on the ASD indicates to the officer that your blood/alcohol ratio is 100 milligrams percent, which is 100 milligrams of alcohol in a 100 millitres of blood. This is because the ASD is calibrated to return a “Fail” or “F” result if the analyses of the ASD test yields a blood alcohol ratio of 100 mg%. As Criminal Code limit is 80 Milligrams Percent, the officer may readily form their grounds for arresting aperson for impaired driving and “Over 80” with a “Fail” or “F” result.  From a criminal defence (and arguably from a prosecutorial) perspective, this is a critical juncture of an impaired driving investigation. While the right to counsel generally does not apply prior to the administration of the ASD, Charter and statutory considerations may be raised as defences at trial under the statute, Charter and cases that have interpreted the relevant sections of the Criminal Code.   It is imperative to contact keep a comprehensive and contemporaneous written account of any exchanges that take place between you and the police officer(s).  We generally ask our clients to immediately write down the precise narrative as it unfolded on the date and time in question.  It is a criminal offence under Section 254(5) of the Criminal Code of refuse or fail provide a sample of your breath pursuant to a valid demand. There are differing elements of the offence and defences that may be raised in connection with a refusal case (see below). Once an officer forms an opinion that a persons ability to operate a motor vehicle is impaired by alcohol, they often arrest an individual for impaired driving and/or over 80, read them their rights to counsel (often from a card) and caution them relative to providing any statements, and read them an evidentiary breath demand for samples of their breath to be taken by a qualified breath technician and to accompany them for that purpose to either a check-stop bus, CPS district office or RCMP detachment. When the police compel an accused to produce samples of their breath, the breath samples are often extracted by a police officer that bears the designation of a Qualified Breath Technician (the “QBT”). The instrument currently used by such technicians in Alberta to extract breath samples is the Intoxilyzer 5000C. A person charged with impaired driving (or Over 80) is often required to provide two (2) breath samples, fifteen to twenty minutes apart, into the Intoxilzyer 5000C. Upon so doing, the QBT will issue the Certificate of Analyses and serve the same upon an Accused person. When the police demand samples of an accused persons blood, there are a number of statutory pre-conditions that the Crown must establish as a condition precedent to the admissibility of the blood samples. Failure to satisfy the Court that such preconditions have been meet may culminate in defences for the accused. Click here for our recent blog on the issue of breath demands and it’s application within the scope of s. 258 of the Criminal Code, as decided by the the Supreme Court of Canada in Regina v. Alex,  2017 SCC 37. At trial, the defence would often seek the exclusion of the Certificate of Analysis by invoking remedies provided for in the Canadian Charter of Rights and Freedoms (the “Charter”) or due to Crown’s ability to comply with the statutory requirements provided for in the Criminal Code. The Charter defences that may be raised include the lack of reasonable and probably grounds to arrest an accused person at first instance for impaired driving, the failure of the police to provide an accused person with a sufficient opportunity to consult with counsel upon detention. The statutory defences available to accused range from the failure to account for unreasonable delays in procuring the breath or blood samples, failing to effect service of the ‘Certificate of Analyses’, and the fact that the accused person was actually operating a motor vehicle within the prescribed time period or had care and control of the a motor vehicle. Individuals who cause accidents while driving while impaired can face significant criminal charges and substantial penalties. When you or someone you love has been accused of drunk driving, make sure you hire a lawyer with the experience and proven record to be effective for you.

D. The Resources to Support Your Case

Our criminal defence firm provides systematic and thorough representation for our clients. We explore all avenues for resolution of impaired driving cases with strategies that can include, but are not limited, to:
  • Challenging the legality and constitutionality of the traffic-stop
  • Questioning the methods applied for testing sobriety
  • Cross-examining witnesses and challenging police testimony
  • Employing expert toxicologists to challenge the prosecution’s evidence
  • Advancing constitutional challenges to laws and legislation

E. Penalties and Sentencing for Impaired Driving

We have won a substantial percentage of the driving offences, over 80 and impaired driving cases we have taken on. We stand behind a proven record of success* based on tireless advocacy for clients and a formidable approach to presenting your defence. A drive while over 80 drinking and driving charge can have significant and unexpected consequences beyond criminal fines and potential jail time. A conviction can also lead to:
  • A permanent criminal record Employment issues
  • Driving prohibition for at least one year
  • Required treatment or assessment programs
  • Increased insurance premiums
  • An immigration status change

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Our client was facing various charges under criminal law including impaired driving, “Over 80” and dangerous driving. The allegation were significant In our view, the best defence for our client was under the Canadian Charter of Rights and Freedoms. Accordingly,...Read More