Ontariohighwaytrafficact.com

Short version: Got pulled over early friday morning for 'improper rear lights'. The officer walked over, said,"i smell alcohol." She asked me to give a breathalyzer and I blew a 0.019. I'd had 1 glass of wine with dinner about 5 hours ago. Since I have a G2, the 0.019 is illegal

10 minutes later I had 2 $110 tickets (1 for BAC, 1 for the rear lights). She gave back my license and called a tow for my car.

She also said, "you may get a letter of 30-day suspension from the ministry in the mail".

This is my issue: I cannot afford the 30 day suspension. I am a sales rep on the road and a 30-day suspension means I will be fired.

My question is.

- If I go and pay up, what are the chances I will get the suspension?

- If the suspension is guaranteed on paying the fine (option 1), can I get an Early resolution meeting and plead for a monetary fine only? or a 3 day suspension?

I've spent the last 36 hours reading everything and pulling my hair out. I've run out of hair to pull out.

Help!

Anyone?

The Courts have no control over the suspension, it's automatically applied by the MTO if you're convicted. The only way you can avoid the suspension is to either be found not guilty or work out a plea deal with the Crown to a different offence.

I'd start by requesting an early resolution meeting with the Crown and seeing if they can offer you any deal. If not you may want to proceed to trial since you don't really have anything to lose by fighting it.

Stanton wrote:

The Courts have no control over the suspension, it's automatically applied by the MTO if you're convicted. The only way you can avoid the suspension is to either be found not guilty or work out a plea deal with the Crown to a different offence.

I'd start by requesting an early resolution meeting with the Crown and seeing if they can offer you any deal. If not you may want to proceed to trial since you don't really have anything to lose by fighting it.

Thanks! that's what I figured. Wonder why the officer said I 'may' get a 30 day suspension is it is the law

Stanton wrote:

The Courts have no control over the suspension, it's automatically applied by the MTO if you're convicted. The only way you can avoid the suspension is to either be found not guilty or work out a plea deal with the Crown to a different offence.

I'd start by requesting an early resolution meeting with the Crown and seeing if they can offer you any deal. If not you may want to proceed to trial since you don't really have anything to lose by fighting it.

Also, any idea on how far out the early resolution meetings are from the date you file the request?

soconfused wrote:

- If I go and pay up, what are the chances I will get the suspension?

umm 100% ? If you pay the fine, you're admitting guilt. It's not going to slip in between some imaginary cracks.

soconfused wrote:

- If the suspension is guaranteed on paying the fine (option 1), can I get an Early resolution meeting and plead for a monetary fine only? or a 3 day suspension?

No. Either you'll be guilty of BAC above zero and a 30 day suspension, you'll receive a plea deal for a lessor charge, or you'll be found not guilty. There's no in between. Novice drivers with alcohol in their system isn't something they play around with. I wouldn't count on them bargaining with you. Prosecutor isn't not going to be able to offer you a made up penalty, they can only reduce the charge. Penalty is automatically set by the MTO once your conviction is registered. They can't make your 30 days disappear. It's automatically set once it's out of their hands.

soconfused wrote:

Thanks! that's what I figured. Wonder why the officer said I 'may' get a 30 day suspension is it is the law

You've only been charged. A 30 day suspension will come after you are convicted in court or when you mail in your guilty plea. Officer is only there to enforce the law, not to convict you.

soconfused wrote:

Also, any idea on how far out the early resolution meetings are from the date you file the request?

Time will vary courthouse to courthouse.

And 1 glass of wine, a true legit size would be gone within one hour after the final sip, Not the 5 clear hours you advised us and 0.019 is also higher than one typical glass of wine

Agree with hwybear. Your original statement of one glass of wine five hours before is impossible.

hwybear wrote:

And 1 glass of wine, a true legit size would be gone within one hour after the final sip, Not the 5 clear hours you advised us and 0.019 is also higher than one typical glass of wine

I was under the impression "that the roadside machine" only gave an indication of alcohol present I did not know that it could give

an exact #.

That said:

If the original post was true (.019)

Would he have reached .00 if he elected to get a second reading at the station?

Cheers

Viper1

viper1 wrote:

I was under the impression "that the roadside machine" only gave an indication of alcohol present I did not know that it could give

an exact #.

The screening device used by police is capable of displaying exact readings, but will display a letter code for people over the legal limit.

For a BAC between 0 and 0.049, it will display an exact reading.

For a BAC between 0.050 and 0.099 it will display an "A". This will result in a roadside suspension. Note that the legal limit is actually 0.08, so some drivers might actually be over the limit but get off with just a suspension.

For a BAC of 0.100 or more it will display an "F". This will result in the driver's arrest for over 80.

The device can also be put into calibration mode, where it will always display a full digital reading instead of a letter code, but that's strictly for calibration testing.

As for your second question, very hard to say how quickly the OP's body would process the alcohol since it depends on gender, weight, build, metabolism, etc. Probably take at least a good hour or more. Keep in mind though, the officer can use a different roadside device for a retest if requested. They don't need to take the person to the station for a full test.

The number used on the course is 15-20 mg/100ml alcohol elimination rate.

I forgot where it comes from but the second test does not have to take place at the station. It can be with a second roadside device. So the answer is maybe depending on where the nearest instrument is.

OPS

It falls under section 48 of the HTA.

Screening device, instrument used for second analysis

(6.1) The second analysis must be performed with a different approved screening device than was used in the analysis under subsection (2) or, if the police officer thinks it is preferable, with an instrument approved as suitable for the purpose of section 254 of the Criminal Code (Canada). 2009, c. 5, s. 15 (8).

Stanton wrote:

It falls under section 48 of the HTA.

Screening device, instrument used for second analysis

(6.1) The second analysis must be performed with a different approved screening device than was used in the analysis under subsection (2) or, if the police officer thinks it is preferable, with an instrument approved as suitable for the purpose of section 254 of the Criminal Code (Canada). 2009, c. 5, s. 15 (8).

You cleared a couple of things up. Thank you.

Is a BAC over .00 a criminal charge?

I don't think that a second "roadside screening device" would hold up in a criminal court.

It is a provincial offense maybe?

Cheers

Viper1

OPS Copper wrote:

The number used on the course is 15-20 mg/100ml alcohol elimination rate.

I forgot where it comes from but the second test does not have to take place at the station. It can be with a second roadside device. So the answer is maybe depending on where the nearest instrument is.

OPS

Not sure how old you are but they used to put out a scale chart from OPP. About 25 years ago.

.015 was what they said is expelled per hour.

Cheers

Viper1

viper1 wrote:

Is a BAC over .00 a criminal charge?

I don't think that a second "roadside screening device" would hold up in a criminal court.

It is a provincial offense maybe?

Provincial offence for young/novice drivers.

.015 is grams how it used to be measured. 15 mg is the same...

ops

hwybear wrote:

And 1 glass of wine, a true legit size would be gone within one hour after the final sip, Not the 5 clear hours you advised us and 0.019 is also higher than one typical glass of wine

1 6 oz glass of (pretty good) white wine. Why would i lie on an anonymous internet forum? That's the definition of a pointless endeavour

It is simply not possible to register that reading 5 hours after a single glass of wine, whatever the quality. You've come to a forum with some extremely experienced police officers who've been dealing with alcohol related investigations for decades. People downplay the amount they drank all the time.

soconfused wrote:

1 6 oz glass of (pretty good) white wine. Why would i lie on an anonymous internet forum? That's the definition of a pointless endeavour

A common serving of wine (5oz) at common percentages (12%) will not give you a 0.019 nearly 5 hours later, period. It's not even close to being a reality. I don't even have to know your gender or weight to know it's not happening. If I went by the information given and had to estimate your attributes, I'd have to assume you're either male or female between the ages of 4-9. At that point I'd have to start wondering how you see over the dashboard.

It's an average of 0.015 mg/% per hour. Some people are slightly lower, some are slightly higher.

Just to close off on this matter.

I fought the charges and won the case. No fines, suspensions, plea bargains or points.

Did you tell the officer you had a glass of wine? Hopefully not, then you could argue it may of been the mouthwash you had just used in court.

slowdriver wrote:

Did you tell the officer you had a glass of wine? Hopefully not, then you could argue it may of been the mouthwash you had just used in court.

I did say I had wine. Still won.

soconfused wrote:

I fought the charges and won the case. No fines, suspensions, plea bargains or points.

Could you please provide more details on exactly how you managed to win the case? IMO, the events that occur within the court (or beforehand with the prosecutor) are some of the most interesting bits of information available from this discussion forum. Thanks in advance.

hecubus wrote:

soconfused wrote:

I fought the charges and won the case. No fines, suspensions, plea bargains or points.

Could you please provide more details on exactly how you managed to win the case? IMO, the events that occur within the court (or beforehand with the prosecutor) are some of the most interesting bits of information available from this discussion forum. Thanks in advance.

Sure. At the basic level, I won because I was honest with myself about what my situation was. There is no discretion in the law so I couldn't argue that I didn't have a bac over 0. So I had 2 options, argue for leniency (first offence, undue hardship, proactive behaviour) or work the system as much I could.

I chose to do both, the leniency argument was my back up. I started by asking for a trial. Then I submitted a disclosure request (including video). I got only paper disclosure by the first trial so the case got adjourned. Leading to next date, I submitted a second request for the video. None came. At trial I had assumed it would pushed out again. My next availability meant that I would be eligible for 11b if we adjourned.

However, at trial, I learned that the video was lost somewhere in the bowels of administration. The prosecutor wanted to withdraw charges but the cop asked for adjournment (serious charge). This is where I started to win.

If I could give one piece of advice it's that you have to be confident and not scared. Most people get intimidated at the stand and just want to gtfo. You're fighting for yourself there, be strong.

Prosecutor started by saying this was a first appearance, I butted in to correct (second appearance). The judge asked about the missing disclosure and was told that the cop had requested it months ago but it never came. They didn't know where it was and wanted to adjourn. Judge asked me if I agreed to adjournment. I said no, asked for withdrawal of charges. Was asked why and I went on a mini rant about how this was a second appearance, the process had already cost me 4 days of work and $300 bucks. I pointed out that I requested disclosure on 2 separate occasions and that my next availability was in April.

Judge pointed out that through no one's fault, the process had been drawn out and commended me on being proactive with the disclosure requests and the effort I put in for it and then said the magic words "the request for adjournment is denied, all charges are withdrawn"

Best part: walking back to my seat, the old OPP officer I was sitting next to says "good job buddy".

I should point out that I am fully aware of the gravity of the charges and I am still gutted that I did that. However, self-preservation is essential when my income depends on driving. I regret driving that night, but I don't apologize for fighting the charge

Thanks for providing all the details; a very interesting read. BTW, good job buddy!

Cocky... while you're at it go after them for the towing charges...

ynotp wrote:

Cocky... while you're at it go after them for the towing charges...

hm...that $300 did pinch quite a bit