How Can We Win an ‘Exceed’ or ‘Over 80’ Trial?

There are literally hundreds of ways to win an over 80 case. The most common ways to win an over 80 case are as follows:

Reasonable Doubt

First, we try to demonstrate that the Crown has not proven beyond a reasonable doubt one of the essential elements which the Crown must prove to rely on the “presumption” or “legal fiction” set out in the Criminal Code. This “legal fiction” is explained under the heading, “What is an ‘Exceed’ or ‘Over 80′ Charge”(i.e. the accused’s blood alcohol reading at the time the breath sample was taken is the same as the blood alcohol level at the time of driving). In other words, we try to demonstrate that the police or Crown Attorney has not carefully proven the checklist of matters which the Criminal Code says they must prove.

Proving each of these elements or the “checklist” can be a significant hurdle for the Crown Attorney. Essentially, if there is a breakdown or mistake shown in any one of the elements, the accused will win his case.

It may be possible for an Ontario DWI lawyer to get your case reduced or even dismissed. If there is a way to win your OVI, DUI, or drunk driving case anywhere in Ontario – Kruse Law Firm will find it.

If the Crown or police are inexperienced or make an important error in their notebooks or while giving evidence, a competent impaired driving lawyer will usually win the trial. The impaired driving precedent case law is constantly changing. Therefore, even the most experienced or competent police officer can easily make a mistake while processing our clients or while giving their evidence. Kruse law firm will find these errors and exploit them to our clients’ benefit.

Police Mistakes

An accused could also potentially win an exceed case if they were able to demonstrate that the police officer did not properly follow and properly testify in court to what can be characterized as a very detailed checklist of matters which must be proven beyond a reasonable doubt to convict an accused in any over 80 case.

This is a very technical area of the law and police officers can and do make mistakes very easily. For example, when a person is arrested the police officer will usually immediately read the person the standard ‘right to counsel’ under the Canadian Charter from a pre-printed card or form along with a toll-free 1- 800-number to call duty counsel. Many exceed cases are won because of a myriad of potential mistakes that the police make with respect to the rights to counsel issue.

The issue of rights to counsel is a very heavily litigated and potentially confusing area of Canadian law. There are literally thousands of cases which can be applied to any given fact situation. Successfully arguing a right to counsel issue in court requires extensive legal research. In fact, impaired driving/exceed law, in general, is the most heavily litigated area of Canadian law. This fact is often very surprising to the public and to lawyers who do not practice in this area of law.

The bottom line is that there is extensive case law and various loopholes which Kruse Law Firm competently exploits to win our clients’ trials.

Identifying and exploiting police mistakes are important because the Crown may not be in a position to proceed. For example, a mistake or breach of the right to counsel issue may lead to a judge excluding the results of the breath tests under the Canadian Charter of Rights and Freedoms. We have seen individuals with readings of at least 250 mgs. of alcohol in 100 mls. of blood, win an exceed case based on a right to counsel argument. In this situation, the judge actually never even gets to see the very high breath readings and the case is thrown out based on a pre-trial Charter application.

The legal and factual issues and case law are endless. An impaired driving lawyer must be resourceful, creative, fearless and diligent in finding every avenue of defence and turning over every stone.

The Carter Defence

In July of 2008 Parliament abolished a very common and successful defence called the Carter defence which was known as an “evidence to the contrary” defence. Kruse Law Firm historically had an approximately 90% success rate in wining cases using this defence. Essentially, a Carter defence was based on the accused’s evidence concerning his or her drinking pattern, age and weight coupled with expert toxicology evidence calculating the person’s actual blood alcohol level at the time of driving and therefore constituting “evidence to the contrary”.

A Carter or evidence to the contrary defence basically meant the defence lawyer was trying to create reasonable doubt that the approved instrument (an intoxilyzer or breathalyzer) was not accurate and the person’s blood-alcohol level could have been below the legal limit at the time of driving.

Kruse Law Firm retained highly adept forensic toxicologists to provide evidence at their clients’ trials. Through proper witness and trial preparation, Kruse Law Firm and other top impaired driving lawyers in the province were able to consistently win over 80 cases by presenting a carefully crafted Carter defence.

An accused did not have to prove anything in court when advancing a Carter defence. The Judge only had to be left with a reasonable doubt that the accused’s blood-alcohol level could have been below the legal limit. Kruse Law Firm clients won their cases even if the judge stated on the record that he or she did not necessarily believe them. However, if the judge was not able to completely reject the evidence of their client and/or his or her other witnesses as to his or her drinking pattern, the judge was left with a reasonable doubt and the case was dismissed.

Judges often stated during their judgment at the end of the trial that, “I do not believe the accused, but I cannot reject his or her evidence which might reasonably be true. This was a very low threshold for an accused to attain. If the judge made this seemingly easy to arrive at finding of being left in a state of reasonable doubt, the accused’s exceed charge was dismissed.

With the demise of the Carter defence, Kruse Law firm has been among the leaders in the province in devising other highly innovative ways to win over 80 cases. One of these innovations is by bringing complex technical disclosure applications in an attempt to force the Crown to provide historical records, repair records, computer downloads etc. in an attempt to ultimately demonstrate to the judge that the breathalyzer or intoxilyzer in question was not functioning properly or being operated properly at the time the client’s breath was tested. This type of “evidence to the contrary” attack on the breath instrument or “machine” involves a battle of experts which requires detailed knowledge of the inner workings of the breathalyzer and intoxilyzer. There are very few criminal lawyers in the province who have the specific knowledge and skill to mount this type of attack. The firm has successfully advanced this highly technical argument in various counties throughout the province and will continue to find unique and innovative ways to fight for their clients and win their cases.

Kruse Law firm is also presently mounting various constitutional challenges across the province arguing that the Bill C-2 legislation abolishing the Carter defence is unconstitutional and individual’s charged with an over 80 offence should be allowed to advance a Carter defence. Time will tell whether these constitutional challenges will be successful as these matters are likely to be appealed through the various levels of appeal courts, up to and including the Supreme Court of Canada. However, the firm believes that the arguments set out in their various constitutional challenges have great merit and are compelling. It will likely take several years before these very complex legal issues are ultimately decided by the Supreme Court of Canada.