There is a requirement of proof that a person’s ability to operate a vehicle or conveyance is impaired by alcohol or drug at the time of operation or care and control. The impairment does not have to be egregious, even a slight impairment of a person’s ability to operate a vehicle or conveyance is sufficient. However, regardless of the level of impairment, the onus is on the Crown Attorney to prove it beyond a reasonable doubt which is a very high standard.
Factors that are considered when assessing these types of offences are, but not limited to: speech, smell of alcohol, balance, coordination, fine motor skill, judgment, physical movements, and reaction time.
If an individual is found not to be in care and control of a vehicle or conveyance then it stands to reason that they would also be found not to operate that vehicle or conveyance. However, the opposite may not be found: an individual can be found not to operate a vehicle or conveyance, yet be found to be in care and control of that vehicle or conveyance.
Impairment of operation can be by way of drugs as well. “Drugs” includes non-prescription medication as well as prescription medication. There have been new changes to the legislation in December 2018. Personal possession and usage of marijuana is legal now. However, it is still an offence to operate a motor vehicle or conveyance under the influence of marijuana. It is anticipated that the road side testing mechanisms for marijuana will be heavily litigated in light of the new changes to legislation.
The prerogative of defence counsel through skillful advocacy is to ascertain what if any indicia of impairment was actually present at the time of the offence, which can bring reasonable doubt to the Crown’s case. Furthermore, certain cases necessitate the consultation and/or usage of toxicologist and accident re-constructionist to ensure our clients receive the best defence available against DUI charges.
