Need Help!! Failure to blow. | GTAMotorcycle.com

Need Help!! Failure to blow.

Sig_Girl

Sig_Girl

Well-known member
Long story short, my friends dad was drinking and driving. Got caught, and was given a failure to blow ticket. The cop did not make him do anything else to prove he was drunk, like walk a line etc.

His car was impounded and 3 months suspension.

He drives his car for a living as a courier driver so he needs his license.

What are his options? Money for a lawyer is not a problem, we need results?

Anyone know off a good lawyer that does alcohol related offenses?
 
Sig_Girl said:
Long story short, my friends dad was drinking and driving. Got caught, and was given a failure to blow ticket. The cop did not make him do anything else to prove he was drunk, like walk a line etc.

His car was impounded and 3 months suspension.

He drives his car for a living as a courier driver so he needs his license.

What are his options? Money for a lawyer is not a problem, we need results?

Anyone know off a good lawyer that does alcohol related offenses?
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So how did the cops determine his BAC to classify him as a drunk driver to tow his car and suspend his license? The smell of his breath or was he falling over?
 
Here's some info off of a lawyer's website who specializes in these cases:
Refusing Breathalyzer Ontario

The penalty for Refusing a Breathalyzer Test in Ontario is the same as if the driver took the test and failed.
The Charge of Refusing a Breathalyzer has the following penalties;


  • the loss of driver’s license for at least one year,
  • a criminal record and;
  • a fine between 1000 and 2000 dollars
  • insurance increase of thousands of dollars per year
  • mandatory alcohol and drinking and driving counseling
  • you may lose your livelihood, loss of employment, if you cannot drive
  • the cost to reinstate your drivers license after conviction is approx $3,500.00
Although a refuse breath test charge may seem straight forward in that the driver either “did or did not provide a breath sample”, there are legal issues that the police and prosecution have to prove to convict a driver of this charge. The police have a legal responsibility to ensure that when they demand a breath test that the driver understands what they are required to do, and the implications if they do not comply. Many times this is not done properly and if the accused did not fully understand, or the police did not explain properly or give the driver a reasonable opportunity to provide the breath sample then this becomes a defense to the charge.

Edit - here's an excerpt from another one:
If you are charged with refusal to provide a breath sample, there may be one or more legal or factual issues that could produce a good result for you. Our Toronto breath test refusal lawyers will examine all aspects of your case. Your statements and video evidence may reveal issues that could result in a dismissal of the charge. These include:

  • Denial of Charter rights - including rights to counsel and rights to translation services
  • Medical defences - such as limited lung capacity or psychological issues that prevent you from performing the test
  • The behaviour of the Breathalyzer machine operator and other officers in the police station
  • Failure of the police to begin the test promptly
  • Failure of the police to offer you a last opportunity to perform the test
  • Lack of reasonable suspicion for the police to stop you

 
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Baggsy said:
Here's some info off of a lawyer's website who specializes in these cases:
Refusing Breathalyzer Ontario

The penalty for Refusing a Breathalyzer Test in Ontario is the same as if the driver took the test and failed.
The Charge of Refusing a Breathalyzer has the following penalties;


  • the loss of driver’s license for at least one year,
  • a criminal record and;
  • a fine between 1000 and 2000 dollars
  • insurance increase of thousands of dollars per year
  • mandatory alcohol and drinking and driving counseling
  • you may lose your livelihood, loss of employment, if you cannot drive
  • the cost to reinstate your drivers license after conviction is approx $3,500.00
Although a refuse breath test charge may seem straight forward in that the driver either “did or did not provide a breath sample”, there are legal issues that the police and prosecution have to prove to convict a driver of this charge. The police have a legal responsibility to ensure that when they demand a breath test that the driver understands what they are required to do, and the implications if they do not comply. Many times this is not done properly and if the accused did not fully understand, or the police did not explain properly or give the driver a reasonable opportunity to provide the breath sample then this becomes a defense to the charge.
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He didn't refuse to blow. He blew but with sleep apnea and being a heavy smoker, he was unable to get a reading? Since the machine didn't work on his breath, he was given the no blow ticket.
 
Sorry to hear about your friend's dad.

With that said, though, I would stop posting any further details on this or any other website.

If this were Ottawa, I'd know who to refer you to (James McGillivary). But, I wish I knew someone in Toronto. Sorry! Perhaps, you could contact him, the Law Society, or the Community Legal Clinics (UofT or York) for a referral. The law students at the Community Legal Clinics don't do impaired driving charges, but they would have better inside knowledge of whom to speak to. Good luck!

[...]

Adding a few more suggestions: I remembered in my law school days Pinkofskys in Toronto had a good reputation, but I can't say that they specialize in impaired driving charges. Another place you could try is contacting the Criminal Law Students' Association at either UofT or York. They would know, for sure, who would be the top impaired driving lawyer in TO.
 
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Was he arrested and brought to a station to blow or was this a roadside test?
 
coyo said:
Was he arrested and brought to a station to blow or was this a roadside test?
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would've been roadside if they towed him on the spot, It would seem they have no actual evidence. The officer would then have had to given him the coordination tests or with his consent, taken him back to the station or a hospital for a more accurate blood test.
 
XenoVibe said:
would've been roadside if they towed him on the spot, It would seem they have no actual evidence. The officer would then have had to given him the coordination tests or with his consent, taken him back to the station or a hospital for a more accurate blood test.
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Not necessarily. I have done MANY breath tests, where vehicle is stopped and once the decision to arrest the person is made another officer stands by with car to see if subject passes or fails test. Once he didn't supply a sample, (It is still the same charge weather you refuse outright or can't supply an adequate sample). I recall a trial I was involved in where the subject blew but not enough to provide an adequate sample. He brought medical evidence that due to emphysema, he couldn't provide an adequate sample the crown called a couple of respiratory experts who said that to have the condition which prevented from supplying a breath sample would require the person to be on constant oxygen. You don't have to blow hard just provide a long sustained stream.

I have seen others not wrap their lips tightly and try to blow around the tube. They are generally given 3 - 5 attempts each time the tech would tell them if they continued to not provide and adequate sample they would be charged with refusal. This was normally enough to get them to provide a sample.

I would be highly surprised if the officer didn't do roadside sobriety tests. I didn't do them once, (as I felt the driver was too intoxicated), when I got the the station the technician, (breath), stated he WANTED the tests conducted to confirm the suspicions in the event a sample wasn't taken.

But regardless, I would highly recommend that the person involved contact a good lawyer and they will assess his charges, and after disclosure is obtained they will provide him with the BEST advice.
 
PLau said:
So how did the cops determine his BAC to classify him as a drunk driver to tow his car and suspend his license? The smell of his breath or was he falling over?
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Once he refused to provide a sample then they tow and issue the suspension it is automatic when the subject is charged. They normally do roadside sobriety tests along with their observations of the driver, Alcoholic smell on his breath, Glassy eyes, blood shot eyes, slurred speech etc.
 
XenoVibe said:
would've been roadside if they towed him on the spot, It would seem they have no actual evidence. The officer would then have had to given him the coordination tests or with his consent, taken him back to the station or a hospital for a more accurate blood test.
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Nope, automatic 7 day impound and 90 day suspension if charged with over 80 or refuse. The refuse can happen roadside or in the station.

As for coordination test, they are no longer done. The driver is either arrested for over 80 (after a roadside fail) or impaired if he's obviously intoxicated. In either case, they are then arrested (no consent about it) and brought in where they are required to blow. IF there is a medical reason that the driver can't blow, then a blood demand is given. Refuse the breath or blood demands and the charge of refuse carries the same punishment as the over 80/impaired.
 
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Go find a good lawyer that has experience in this.
He could cover off the 90 day by hiring an out of work guy as a driver, but once he makes a court appearance if convicted isn't it a 1yr time out? and with his new insurance rate being a courier driver may require a career change.
Good luck
 
Drunk driving charges are tough to convict on. Heard lots and lots and LOTS of complaints from a provincial Crown buddy.
 
Sig_Girl said:
He didn't refuse to blow. He blew but with sleep apnea and being a heavy smoker, he was unable to get a reading? Since the machine didn't work on his breath, he was given the no blow ticket.
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STFU.... and call a lawyer.
 
FiReSTaRT said:
Drunk driving charges are tough to convict on. Heard lots and lots and LOTS of complaints from a provincial Crown buddy.
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I heard the opposite actually. It's usually pretty cut and dry.... I think something like an 80% conviction rate. If you refuse to blow and he has no medical documentation stating why he can't, it's a pretty easy case. JP's and Judges are all pretty hard on DUI's.
 
Dr.Manhattan said:
I heard the opposite actually. It's usually pretty cut and dry.... I think something like an 80% conviction rate. If you refuse to blow and he has no medical documentation stating why he can't, it's a pretty easy case. JP's and Judges are all pretty hard on DUI's.
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It's difficult in that the officer has to be VERY articulate and close all the loop holes created in case law by rich drunks with expensive lawyers. Cover those loop holes and the conviction is easy.
 
coyo said:
It's difficult in that the officer has to be VERY articulate and close all the loop holes created in case law by rich drunks with expensive lawyers. Cover those loop holes and the conviction is easy.
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more details on said loop holes?
 
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