Can I Fight My Marijuana DUI charge?

Defence of a drugs and driving charge requires that the lawyer and potential client meet in person for a detailed preliminary consultation for at least one-hour to discuss the client's recollection of exactly what he or she smoked or consumed, what the police saw, did, and said, the Standardized Field Sobriety Tests (SFSTs), the drug screening device used, what opportunity to speak to counsel was given at the station, the Drug Recognition Expert's procedure (DRE), and the toxicological analysis of blood or urine. The potential client should obtain a paid legal opinion of the merits of any defence before getting an estimate or hiring the lawyer. Sometimes the lawyer will recommend that you obtain primary disclosure of the police notes and DRE room video prior to the lawyer providing a detailed opinion on the merits of a defence and giving you an estimate of the cost.

Sometimes a client and their existing lawyer will ask us to consult and conduct a detailed review of the disclosure and DRE room video to identify hidden issues that can be successfully litigated. We do this quite often for colleagues who have taken our continuing education programmes on DRE defence and analysis of disclosure. We can only perform this service if the request comes from the lawyer, not the client. We do not ever want to interfere with an individual's relationship with their own lawyer. 

  • Are you charged with "operating" or "care or control"? Did the police see you driving or sitting in your vehicle behind the wheel? (Read Toews and Ford in the Supreme Court of Canada). Was there a witness? If you made an oral, written, or video statement admitting to driving, did the police follow all the rules in reading your rights?

  • Are you charged with "impaired by drug" operation or care or control? (Read Stellato in the Ontario Court of Appeal)

  • Did the police have a valid reason for stopping you, eg. a R.I.D.E. program? (Read Ladouceur, Hufsky, Wilson, and Dedman in the Supreme Court of Canada)

  • Did the police conduct SFST physical tests at the scene and more importantly can the Crown use the results against you in Court? (Read Saunders, Milne, Coutts in the Ontario Court of Appeal) 

  • Did the police use a roadside drug screening device? Did the officer make a formal demand? Did another police officer have to bring it to the scene? (Read Grant in the Supreme Court of Canada) Was it an "approved drug screening device"? Was it properly calibrated? Was it used by the same officer who made the demand? Was there contamination in your mouth from a recently consumed food or drink? (See Bernshaw in the Supreme Court of Canada)  

  • Did the police speak to you in a language you understood? (see Vanstaceghem in the Ontario Court of Appeal) Did they read you your rights and tell you about 24 hour free advice from duty counsel? (See Brydges in the Supreme Court of Canada) Were you too intoxicated to understand? (See Clarkson and Mohl in the Supreme Court of Canada) Is English your second language?  

  • Did the police make a formal demand that you attend a DRE evaluation at the police station ? Did the police have reasonable and probable grounds for the demand? What does your disclosure show about the police officer's notes regarding the indicia of impairment?  (See also Bernshaw in the Supreme Court of Canada)  

  • Were you given a real opportunity at the police station to consult with a lawyer in private

  • Are the results of the blood or urine test totally erroneous? Based on what you know you smoked or consumed, are the DRE officer's opinion or toxicological results erroneous? Perhaps an expert should be retained to give evidence about the long term storage of THC metabolites in the body?

  • Do you work with any liquids, gels, creams, or other substances that may be interferents to the drug screening device analysis?

  • Should you serve the Crown with a Notice of Application for a remedy excluding evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms? 

  • Has the Crown provided you with complete disclosure of their case including documents and materials helpful to you? Has any evidence been destroyed? (See Stinchcombe in the Supreme Court of Canada)

  • Will the Crown be calling the DRE officer to give evidence?

  • Has the matter come on for trial within a reasonable time or have there been unacceptable delays due to Crown requested adjournments, paperwork foul-ups, or systemic problems in the Courts? (See Askov Morin, and Jordan in the Supreme Court of Canada) 

  • If convicted, is this a first offence, a second offence, or a third? Did the police serve you with "Notice of Increased Penalty" and did they follow all the rules for service? What's your previous record? Will the Crown negotiate to treat a third as a second or a second as a first?

  • You need to consult with a lawyer to go over your case in detail. You will need to pay for a detailed opinion as to whether or not you have a good defence. That takes time and money.

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For more information respecting this database or to report misuse contact: Allbiss Lawdata Ltd., 303-470 Hensall Circle, Mississauga, Ontario, Canada, L5A 3V4, 905-273-3322. The author and the participants make no representation or warranty  whatsoever as to the authenticity and reliability of the information contained herein.  WARNING: All information contained herein is provided  for the purpose of discussion and peer review only and should not be construed as formal legal advice. The authors disclaim any and all liability resulting from reliance upon such information. You are strongly encouraged to seek professional legal advice before relying upon any of the information contained herein. Legal advice should be sought directly from a properly retained lawyer or attorney. 

WARNING: Please do not attempt to use any text, image, or video that you see on this site in Court. These comments, images, and videos are NOT EVIDENCE. The Courts will need to hear evidence from a properly qualified expert. The author is not a scientist. The author is not an expert. These pages exist to promote discussion among defence lawyers.

 

Intoxilyzer®  is a registered trademark of CMI, Inc. The Intoxilyzer® 5000C is an "approved instrument" in Canada.
Breathalyzer® is a registered trademark of Draeger Safety, Inc., Breathalyzer Division. The owner of the trademark is Robert F. Borkenstein and Draeger Safety, Inc. has leased the exclusive rights of use from him. The Breathalyzer® 900 and Breathalyzer® 900A were "approved instruments" in Canada.
DrugTest® 5000 is also a registered trademark of Draeger Safety, Inc.. DrugTest® 5000 is "approved drug screening equipment" in Canada.
Alcotest® is a registered trademark of Draeger Safety, Inc. The Alcotest® 7410 GLC and 6810 are each an "approved screening device" in Canada.
Datamaster®  is a registered trademark of National Patent Analytical Systems, Inc.  The BAC Datamaster® C  is an "approved instrument" in Canada.