Legal Help DUI

[Eric Vail]

I hope you file your appeal, pay your money, and lose.

Sorry, you were drinking. You admitted it here and to the cop. Your licence says zero alcohol. If you get off, it is an injustice.

[fleuryisgod]

Originally Posted by hockeycop

Get a buddy over, have him throw back a couple. Take a pen and hold it just above his eyes so he is looking up at it. Move it slowly from side to side. A sober person, it will be a fluid smooth motion. With alcohol present, the eyes will go in spurts. It is pretty obvious.

Make sure he does not have a GDL and then drive home...could create a pretty long thread if he does.

[hockeycop]

Originally Posted by Jimmy Krack Korn

Of course you are fully within your rights to check into this further and if, because the cop neglected to check the "fail/refuse to provide breath sample" you are successful in your appeal, good for you, the cop should have known better/been more thorough.

It's not a matter of failing to check a box. That stuff can easily be fixed and doesn't give grounds for an appeal.

The fact that he was never given a breath/blood test AND was not asked to take a breat/blood test AND did not refuse (as no oppotunity was given), creates an error in law.

[Swarly]

Originally Posted by Eric Vail

I hope you file your appeal, pay your money, and lose.

Sorry, you were drinking. You admitted it here and to the cop. Your licence says zero alcohol. If you get off, it is an injustice.

I dont see an injustice if he were to get off. He should lose his license for 24 hours. They are taking it for 30 days under a different law.

Like being charged for murder when you committed a robbery. Did he do something wrong, yes. But he must be charged for the correct crime, he wasnt as neither of the 2 conditions for losing your license for 30 days was met.

[DropIt]

Originally Posted by normtwofinger

Out till 2:30AM drinking at a friends house and then drives home and gets caught by the cops. If I did that I wouldn't have car privledges for a long time.

[DropIt]

Originally Posted by normtwofinger

I was not saying it's the parents fault, but they should take action now and prevent him from doing it again with some discipline. (ie take away the car). I know I don't know how much he had to drink or when his last drink was. But it was enough to make an EMS driver worry enough to get the police involved. I know that if I was in this situation and still lived at home, whether I was 16 or 26, my parents would be outraged and there would be consequences.

sorry, but you need to grow up.

[wooohooo]

Originally Posted by DropIt

sorry, but you need to grow up.

You arrive late to the show and bring up something from the first few pages? You need to point something like that out for what?

[T@T]

Man the people throwing stones at this kid makes me think 90% of CP'ers are perfect and never ever do a thing wrong.

Maybe you all should call Ken King and tell him whats wrong with the flames.

Hypocrites!! yeah...I'm taking to all of you

[BlackArcher101]

Originally Posted by T@T

Man the people throwing stones at this kid makes me think 90% of CP'ers are perfect and never ever do a thing wrong.

Maybe you all should call Ken King and tell him whats wrong with the flames.

Hypocrites!! yeah...I'm taking to all of you

90% of the people aren't arguing against that point nor did 90% say they didn't ever have a drink and drive. Most of the 90% are arguing the letter of the law.

[T@T]

Originally Posted by BlackArcher101

90% of the people aren't arguing against that point nor did 90% say they didn't ever have a drink and drive. Most of the 90% are arguing the letter of the law.

Fair enough eh!

Admittedly I only skimmed threw this 300 post thread but saw enough to post my responce. It reminds me of a god/religious conversation and it never goes well.

[wooohooo]

This conversation went from the OP being a hazard to society then to what the OP meant to alcohol in pasta then finally the actual topic the OP asked for. Let's not get into god and religion okay T@T?

[bcb]

Originally Posted by BlackArcher101

90% of the people aren't arguing against that point nor did 90% say they didn't ever have a drink and drive. Most of the 90% are arguing the letter of the law.

Morally, I'd imagine the OP already knows he's wrong. Heck, I'd call him a glutton for punishment for even sticking around this thread for so long.

To make a dreaded assumption, he's probably a young guy, did something stupid and knows it.

If it were simply a matter of a 30 days without a license, I think the OP would leave with his tail between his legs. The issue for him (and rightly so) is insurance. If this is a young guy, either finishing high school or in his early years of university, he can expect to pay 6 grand a year in insurance premiums for the next decade.

I'd sooner take a month in jail, or community service,

I almost guarantee that based on the treatment this OP had endured, first when stopped by the cop, and now here, he will never drink and drive again, regardless of the cost of insurance, so I argue the monetary punishment he will pay does not fit the severity of the crime.

Now it seems the law may have been applied in error, so he should rightly appeal. It's not about 'being a man' and paying a fine or 30 days without driving. This ordeal could cripple him financially. Anyone here would appeal in his situation.

[Maritime Q-Scout]

Originally Posted by Eric Vail

I hope you file your appeal, pay your money, and lose.

Sorry, you were drinking. You admitted it here and to the cop. Your licence says zero alcohol. If you get off, it is an injustice.

Not defending thesmugger, but it's not an injustice that the police can't do their job properly?

All he had to do was give a breathalyser to ensure beyond a reasonable doubt that he had been drinking. He didn't do that. I don't agree with lowering the standard of reasonable doubt.

Originally Posted by BlackArcher101

90% of the people aren't arguing against that point nor did 90% say they didn't ever have a drink and drive. Most of the 90% are arguing the letter of the law.

Actually they're not as they're letting the police be slack and not actually investigate to the letter of the law.

[Raekwon]

What will happen if I violate a GDL program condition or restriction?
Violating a program condition or restriction may result in a new driver being charged with an offence as outlined below.
Violation
Penalty
Alcohol consumption
Immediate 30 day suspension
More passengers than seat belts
$100 fine & 2 demerit points
Driving after midnight (learners only)
$100 fine & 2 demerit points
No accompanying driver
$200 fine & 2 demerit points

Note: If a new driver has their operator’s licence suspended due to accumulating 8 or more demerit points their operator’s licence will be reinstated, following the suspension, with 3 demerit points.Effective intervention strategies are in place that will enable Alberta Transportation to identify problem driving behaviors that may require the driver to attend improvement or remedial courses.


So i'm guessing there was no test as he was not looking to charge you with impaired. As you admitted to drinking you got an automatic 30 day suspension. Consider yourself lucky.

[ken0042]

Originally Posted by hockeycop

The fact that he was never given a breath/blood test AND was not asked to take a breat/blood test AND did not refuse (as no oppotunity was given), creates an error in law.

Isn't the fact that the accused admitted to have been drinking enough? (I ask because thought it would be.)

I'm just thinking back to one day in traffic court; a lady in front of me was pleading not guilty to her 125 in a 100 zone ticket; saying that she wasn't doing 125 but really 140. The officer was cutting her a bit of a break by only marking 25 over. Based on her testimony, the judge then found her guilty of 140 in a 100 zone.

By taking this to court; wouldn't he run the same risk- that he could be found guilty of a higher offense?

[Regorium]

Based on my understanding of the GDL, it really is zero tolerance.

Had you said that you were not drinking, and the officer had reason to believe you had been, THEN you would have been subjected to the breathalyzer test (and perhaps charged for impaired driving/higher offences if you blew >0.08). Since you admitted to drinking, you get the automatic 30 day suspension, and the officer saves time by not having to do the test on you.

You could try to take it to court, but I don't think it would go anywhere. Were you a fully licensed Class 5 driver, I think you'd have a case, but not on GDL.

[Maritime Q-Scout]

Originally Posted by ken0042

Isn't the fact that the accused admitted to have been drinking enough? (I ask because thought it would be.)

I'm just thinking back to one day in traffic court; a lady in front of me was pleading not guilty to her 125 in a 100 zone ticket; saying that she wasn't doing 125 but really 140. The officer was cutting her a bit of a break by only marking 25 over. Based on her testimony, the judge then found her guilty of 140 in a 100 zone.

By taking this to court; wouldn't he run the same risk- that he could be found guilty of a higher offense?

I don't know, but I would think where the statute specifically states a procedure must take place, in addition to another poster giving a story where he had a drink, however he blew 0 on the breathalyser.

To me the argument is, I could have blown 0, not that he clearly would have blown 0.01 or higher.

If you're proving you weren't travelling 125kmh by stating you were actually driving 140kmh then (provided the statute of limitations of amending a charge hasn't past) the judge could find for the higher infraction.

However, it's argumentation like this why the OP should talk to a lawyer in this field.

[valo403]

Originally Posted by ken0042

Isn't the fact that the accused admitted to have been drinking enough? (I ask because thought it would be.)

I'm just thinking back to one day in traffic court; a lady in front of me was pleading not guilty to her 125 in a 100 zone ticket; saying that she wasn't doing 125 but really 140. The officer was cutting her a bit of a break by only marking 25 over. Based on her testimony, the judge then found her guilty of 140 in a 100 zone.

By taking this to court; wouldn't he run the same risk- that he could be found guilty of a higher offense?

Agreed, I find it hard to believe that this legislation doesn't allow for a confession to be used in lieu of a breath test. I know that the text quoted here by hockeycop only gives two grounds, but that's not a full analysis of how the statute works. You need to read the particular language in conjunction with the entire document. That said, poorly drafted legislation isn't all that rare.

[jolinar of malkshor]

Originally Posted by hockeycop

It's not a matter of failing to check a box. That stuff can easily be fixed and doesn't give grounds for an appeal.

The fact that he was never given a breath/blood test AND was not asked to take a breat/blood test AND did not refuse (as no oppotunity was given), creates an error in law.

Nice work at picking up the fact that the breath sample requirement is an element of the offence. I missed that when I was looking through that section.

OP this is a release from the government about your exact situation.

http://atsb.alberta.ca/documents/azatjan04.pdf

[jolinar of malkshor]

Originally Posted by ken0042

Isn't the fact that the accused admitted to have been drinking enough? (I ask because thought it would be.)

I'm just thinking back to one day in traffic court; a lady in front of me was pleading not guilty to her 125 in a 100 zone ticket; saying that she wasn't doing 125 but really 140. The officer was cutting her a bit of a break by only marking 25 over. Based on her testimony, the judge then found her guilty of 140 in a 100 zone.

By taking this to court; wouldn't he run the same risk- that he could be found guilty of a higher offense?

Thats what I thought as well but if you read closely subsection (2) gives the authority for the officer to demand a Breath sample. Subesctions (3) and (4) tell what will happen if a breath sample is or isn't provided.

I don't see anywhere after (2) that allows for the suspension on suspicion alone. I didn't read it close enough yesterday and I believe I interpreted it wrong. Thanks to hockeycop it is now interpreted correctly.

OP: Appeal it and tell us what happens.