Blog

Price
Price is one factor that goes into people’s decision making about their lawyers. While there are clearly limitations based on what you can afford to spend, you should not be guided so much by the cost of the lawyer. There are some very excellent lawyers who come at a low price. There are some lawyers who charge more but may not be as skilled in a particular area. There is an old saying that goes “You can pay $500 for $5 of advice from an old lawyer, or $5 for $500 of advice from a young lawyer.

Legal fees are not standardized. Lawyers set their own prices, largely based on what they believe their services are worth. At our office, we try to keep prices reasonable because we do not believe anyone should have to go broke defending themselves from a criminal charge. Our fees are mostly determined by the amount of work we have to do in a particular case and what it will cost in terms of labour, time, and office resources to do that work. It’s not a scientific formula, but it’s close.

It’s a mistake to think that the most expensive lawyer is the best. This might sometimes be true, but it is equally as often false. Price should only inform your decision about what lawyer to hire insofar as it relates to what you can afford. Beyond that, you should not draw conclusions based on dollars alone.

Age/Experience
A short while ago, I dealt with a client who had a particularly complex case. Throughout the different steps involved in the case, this client insinuated to me repeatedly that they might be better off with an older lawyer. Honestly, I was offended. I was working hard on the case, and it was well within my wheelhouse to deal with the issues that arose. There have been countless other times that clients and potential clients have suggested that I am too young to handle their cases.

Age and experience are two different things. Personally, I believe that my track record of successes in Immediate Roadside Prohibition and DUI Impaired Driving cases speaks far more about my ability to handle complex cases than my age does. Experience comes from doing something, learning what is necessary, and doing it over and over again. There are many older lawyers who do not have the degree of experience I do in IRPs, just as I do not have the experience they do in other types of cases.

When you are choosing a lawyer, you should look for someone who is experienced in the area you need. Look for a proven record of success, and a reputation for winning or arguing new angles and avenues of defence. Do not be afraid to ask potential lawyers questions about the area of law you are dealing with to see how they answer. A lawyer with the right amount of experience for you will be able to answer you questions clearly and succinctly.

Fit
At the end of the day, you want to be comfortable with the lawyer you have. When you speak with them on the phone or in their office initially, you want someone you feel you can trust. You want someone who puts your mind at ease and makes you feel as though your case is something they can handle. This isn’t to say you should want to be your lawyer’s friend. Trust me, you do not want to have your friend be your lawyer or your lawyer be your friend. But your lawyer should make you feel comfortable with your decision to hire them.

Your lawyer is going to be the person who will be arguing your case in court, and making sure your version of events is properly heard. You need to be able to trust that they will do that for you. There is a lot to be said for someone who just makes you feel comfortable with the process. Trust your brain and trust your gut and you will find the right lawyer for your criminal case.

A lot of people that initially call my office aren’t sure how to go about defending their Immediate Roadside Prohibition. They don’t know what it takes to defend an IRP. As with any legal work, most clients whose cases I successfully have defended are unaware of all that has gone into their defence.

Simply put, defending an Immediate Roadside Prohibition isn’t just about presenting my client’s version of events and hoping the adjudicator makes the right decision. There is so much more that goes into defending an IRP.

Knowing the Law
A huge aspect of defending clients who are facing long driving prohibitions comes down to knowing the law. This is why people hire lawyers in the first place — because they want someone who has extensive experience in a particular area and is best equipped to handle their case. When I defend clients facing Immediate Roadside Prohibitions, in every single case, I don’t just present their version of events. My submissions contain a comprehensive breakdown of all the applicable case law, and how it relates to their cases.

Part of knowing the law is knowing the cases that work for and against my clients. Just because a person lost their IRP appeal in BC Supreme Court, doesn’t mean that the decision should be disregarded. I have attributed a great deal of my success to the fact that I am able to glean the legal principles from the cases, and apply them even when the outcome has not been favourable.

One of the reasons I know the law is because I have been fighting these cases not just before the tribunal, but also in BC Supreme Court. Some of my successful decisions have resulted a complete change in practice and procedure at RoadSafetyBC.

Knowing the Machinery
One benefit that I have, that my clients often do not, is that I know the machinery. Not only have I operated and used an Alco-Sensor IV DWF on numerous occasions, but I have also read the manufacturer’s manual, the RCMP manual, and the calibration manuals. I have calibrated and checked the calibration of these devices using both types of alcohol standard. I have an Alco-Sensor IV and an Alco-Sensor FST in my office. I’ve even been certified in the calibration and operation of the Alco-Sensor FST by the manufacturer.

Because I have access to the equipment and the information about the equipment, I am able to discern easily from police records whether the breathalyzers were properly operated or functioning properly at the time of the test. There are so many nuances in the operation and maintenance of these devices that can be overlooked by people without a trained eye. Knowing the breathalyzer is a significant contributing factor to my successes in IRP DUI cases.

Never Giving Up
In truth, this is probably as much a personality flaw as it is a benefit to my clients. When something matters to me, I will fight to the bitter end. When it comes to defending Immediate Roadside Prohibitions, I never give up. Anytime there is a change in the law that benefits my clients, I will spend evenings and weekends in the office, pulling files, contacting clients, and making supplemental submissions to the RoadSafetyBC tribunal or the Attorney General. It is not uncommon for me to fax submissions to the Superintendent of Motor Vehicles over the weekend, until their fax machine runs out of memory and paper.

If you receive an Immediate Roadside Prohibition, you need a lawyer who knows the law, knows the machinery, and never gives up. I cannot promise that I will win your case, but I can promise that I am all those things.

This month has been an interesting month insofar as the development of the law pertaining to privacy and Charter rights in the digital age.

The Decisions:

The first development came with the release of R. v. Spencer from the Supreme Court of Canada. This case concerned the application of the Person Information Protection and Electronic Documents Act to demands made by police to Internet Service Providers for subscriber information. Without a warrant, police attempted to obtain personal information about the subscriber to a particular IP address that would link him to accessing, possessing, and making child pornography available to others. At issue was whether the police could rely on powers set out in the PIPEDA as broad authorization to demand, without a warrant, this information from the ISP.

The Court unanimously concluded that internet subscribers have a reasonable expectation of privacy in their internet activity. The subject matter of the search was not only the name and address of the subscriber, but information about their internet activity. It is generally understood that internet browsing is done under the veil of anonymity. As such, internet activity engages what the Court described as significant privacy concerns. The PIPEDA does not grant search powers to the police, and the purpose of the legislation is to protect personal information, not to disclose it.

That said, the evidence was ultimately admitted as the police were acting in good faith and in their belief that they were following the law.

Following this, the BC Court of Appeal released its reasons in R. v. Mann. This case dealt with the power of police to search a cell phone for its contents, incidental to a lawful arrest. At common law, police have a power to search incidental to arrest. They may search the offender and surrounding area for evidence related to the offence. During the search of Mr. Mann, police seized a BlackBerry cell phone. They then downloaded the entire contents of the phone without a warrant.

The Court of Appeal found that there is a significant privacy interest in the contents of a cellular phone. Relying on the Supreme Court of Canada’s decision in R. v. Vu, the Court found that people have a heightened privacy interest in the contents of their computers and cell phones. Essentially, in the digital age, all of our personal lives are contained on our devices. At paragraph 120, the Court wrote:

It now seems obvious that the individual’s privacy interest in the contents of a device such as a BlackBerry outweighs the state’s interest in law enforcement, and a warrantless search of those contents is unreasonable according to the test set out in Collins.

However, as with Spencer, the evidence was still admitted. The Court concluded that the police were acting in good faith and that at the time of the investigation, the law on cell phone searches was not as developed and settled as it is now.

But if the evidence is not excluded, what does this mean?

Many people get lost in the fact that the evidence has. nonetheless, been excluded. The fundamental reasons behind the inclusion of the unlawfully obtained evidence in these cases has to do with the lack of clarity in the law at the time of the searches.

That logic will not apply in the future, now that the law has been clearly identified by the higher courts. This same result was achieved in R. v. Evans, a 1996 SCC decision. That case pertained to a “sniffer search” undertaken by using the common-law power to knock and approach a door. The Court concluded this was an unlawful search but admitted the evidence because the police were acting in good faith. It is now generally accepted that sniffer searches of this nature, conducted without a warrant, are unconstitutional and evidence is not so freely or readily admitted as a result of these searches.

As reported on the Acumen Law Blog recently, the breathalyzer doesn’t always work correctly. And key to defending any Immediate Roadside Prohibition case is understanding how these devices work.

But sometimes, errors occur that cannot be explained. As you can see in the above video, the Alco-Sensor IV DWF device simply would not accept my breath sample. I have blown into this and other breathalyzer and approved screening devices probably thousands of times. I have experimented with blowing hard, blowing soft, blowing for a short time, and blowing for a long time. I know how to provide a suitable sample. And in the video above, I was doing exactly what the device required to meet the sampling parameters. Yet for some reason, the device simply did not detect my airflow.

This was an approved screening device that had been checked for calibration using a wet bath standard and had received recent annual servicing. On paper, there was no reason why the device should not have accepted my breath sample. Nonetheless, despite my best and most legitimate attempts to blow, the machine did not work.

I deal with many Immediate Roadside Prohibition, Administrative Driving Prohibition, and criminal refusal to blow charges every year. Every once in a while I have a client who tells me they were making an earnest and honest attempt to provide a sample, but the police disclosure reveals information that would indicate no air was going into the device. Having experienced this issue myself, I can relate to my clients’ bafflement at their circumstances and I understand my clients’ innocence.

One of the most important factors in defending impaired driving, DUI, and/or Immediate Roadside Prohibition (IRP) cases is understanding the equipment used by the police. Until you have had hands-on experience with the devices and instruments, you cannot fully understand the intricacies of how these machines work. I am fortunate to have a small collection of breath testing equipment, including a BAC Datamaster C approved instrument, an Alco Meter SL-2 approved screening device, a Draeger AlcoTest 7410 approved screening device, and a Breathalyzer 900, which was formerly an approved instrument. In our office, we have an Alco-Sensor FST, Alco-Sensor IV, Intoxylizer 400, and an Intoxlyzer 5000. I have personally operated and used each of these pieces of equipment, so I know and understand how they work and why they fail.

But sometimes, (like in the above video) even with plenty of experience using a device, it simply does not work. And the reason why cannot be explained.

I deal with a lot of cases involving charges of driving while prohibited. I also talk to a number of individuals who are serving driving prohibitions and are curious about the consequences of driving while they are prohibited. It is a Motor Vehicle Act offence to drive while prohibited, and a Criminal Code offence to drive while disqualified. So do not do it. You will most likely get caught.

How Do People Get Caught?
A lot of people seem to believe that if they do not do anything wrong with their driving, they will be able to drive while prohibited undetected. Police officers scan license plates while they are driving. Technology now enables officers to automatically scan thousands of license plates an hour. Anytime a plate comes back as a “hit” the police will pull the vehicle over to investigate. This technology is known as Automated License Plate Recognition. According to statistics reported on the DriveSmartBC blog, 1944 people were charged for driving without a license and 313 people charged with driving while prohibited in 2013 alone. The BC RCMP statistics show that in a period of fewer than two years, 3.6 Million license plates were scanned using ALPR technology.

How Do They Prove The Case?
Driving while prohibited cases are unique. The Crown must prove only that the person charged was driving, was prohibited, and knew he or she was prohibited. Evidentiary shortcuts in the Motor Vehicle Act allow the Crown to introduce documentary evidence, such as the driving record, letters from ICBC/OSMV, and Certificates from the Superintendent of Motor Vehicles or President of ICBC as proof of these facts. The documentary evidence creates a rebuttable presumption that the accused knew he or she was prohibited. Which makes defending these cases more difficult, although certainly not impossible.

There are defences to driving while prohibited charges. Mens rea must be proven. But knowing these defences involves a lot of research and particular knowledge. There are some defences that no longer work for driving while prohibited charges.

Consequences: 
Many people, on learning that a driving while prohibited charge is a Motor Vehicle Act offence, do not think the charges are serious. This is a mistake.

The consequences for driving while prohibited are significant. On a first conviction, the mandatory minimum penalty is a $500 fine and a one-year driving prohibition, pursuant to Section 99 of the Motor Vehicle Act. On a subsequent conviction, there is a mandatory minimum fine of $500 and a mandatory jail sentence of no less than 14 days. These cases must therefore be taken seriously.

Tomorrow is the National Day of Impaired Driving Enforcement.

According to an article in the Morning Star, a Vernon newspaper, police will be out in full force on Saturday, March 22, 2014 conducting roadblocks and checking for impaired drivers. With nice weather finally here for springtime in Vancouver, I do not doubt that many people will encounter a roadblock on their travels this weekend.

There are a variety of consequences that you can receive when police conduct impaired driving investigations. They are often difficult to understand and can result in further punishment that you are not told about at the roadside. I deal with all manner of impaired driving cases, including:

• 24-Hour prohibitions for drugs;
• 24-Hour prohibitions for alcohol;
• 3-day, 7-day, and 30-day Immediate Roadside Prohibitions;
• 90-day Immediate Roadside Prohibitions for Fail;
• 90-day Immediate Roadside Prohibitions for Refusal to Blow;
• 90-day Administrative Driving Prohibitions;
• Impaired driving charges;
• Driving over 80 mg charges;
• Refusal to blow charges;
• Impaired driving causing bodily harm; and
• Impaired driving causing death.

If you are issued any of the above charges or sanctions, there are limitation periods and it is imperative that you act fast. Contact me immediately and I will be able to explain your rights and the procedure to you, free of charge. Our telephone number is 24-hours: 604-685-8889.