Ontario Criminal, DUI, and Impaired Driving Lawyers

Aitken Robertson, Professional Corporation

2263 Princess Street
Kingston, Ontario K7M 3G1

Phone(613) 531-9099 or(800) 668-1657
Fax (705) 742-0889

Law Firm Overview

Aitken Robertson Professional Corporation is a criminal defence law firm that specializes in professional legal representation and looking out for the best interests of their clients when it comes to fighting impaired driving charges, DUI and other criminal matters.

Areas of Law

Articles Published by Aitken Robertson, Professional Corporation

 An American with a DUI: Can I Get into Canada?

Are you an American citizen who has been charged, tried, and convicted of a DUI? Do you have interests in travelling outside of the USA to your northern neighbor: Canada? Find out whether or not you can Enter Canada if you have been convicted of a DUI.

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 Canada - Trial by Judge or Machine? What Will the Supreme Court Decide in R. v. Anic St- Onge Lamoureux?

Man Against Machine: What Will the Supreme Court Decide in R. v. Anic St- Onge Lamoureux? The Supreme Court will shortly be giving its decision in the R. v. Anic St-Onge Lamoureux case, which is a case about the constitutionality of certain provisions in the Criminal Code with respect to drunk driving charges. Why should you be interested in a drunk driving case?

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 Our Youth Criminal Justice System: A Primer - Canada

The most recent version of the Criminal law that applies to youth in Canada, the Youth Criminal Justice Act (YCJA), took effect in April 2003. Its predecessor was the Young Offenders Act (YOA) which came into force in 1984, and before that we had the Juvenile Delinquents Act (JDA) of 1908. The YCJA is longer and more complex than what came before, and is meant to address the problems found in the previous regimes......

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 Drinking and Boating Part 1: Yo Ho Ho and a Conviction for Impaired - Canada

Drink And The Devil Had Done for The Rest Yo Ho Ho And A Bottle of Rum. Boating season is upon is. For some, this is also the start of gin and tonic season. Take note: in Ontario, drinking and boating can cost you your driver's license.

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 Can I Be Convicted of Impaired Boating for Lying on My Inflatable Duck in My Pool, Drunk?

The short answer is "no" but you should not do this as your could drown! You could not be convicted of impaired operation of a vessel in these circumstances although you could in slightly different circumstances, so please read on.

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Videos Provided by Aitken Robertson, Professional Corporation

What is the Difference Between Impaired Driving & Over 80 in Canada

Impaired driving and over 80 in Canada are covered by the same section of the Criminal Code. A person cannot be convicted of both offences in a single offence, however they are very different in how they are prosecuted.

Impaired driving is how alcohol affects you and your ability to drive - over 80 is the scientific measurement of alcohol in your blood.

A good way to think about this is a young driver who has never had a drink before may have one or two drinks and be under the legal limit yet be well impaired. A older driver, who has a very strong tolerance for alcohol, may be well over the legal limit but be very sober. Both are criminal in Canada and both can lead to similar consequences but you can only be convicted of one and not both.

What is the Penalty for a DUI in Ontario?

For a first-time DUI offence, such as impaired driving or over 80, in the province of Ontario, a typical offender can expect a fine somewhere in the range of $1,000 to $1,500, plus a 30% victim-fine surcharge, a 1 year loss of licence - but this can be served in Ontario as three months no driving and nine months with the blower device, the ignition interlock device installed in your vehicle. As well, you will have to take the Back-on-Track program and pay a reinstatement fee to the Ministry of Transportation.

Typically, in second offences for drinking and driving offences in Ontario, an individual can expect to receive a 30-day sentence of jail, along with a three year loss of licence, and a three year period after they have their licence reinstated with the ignition interlock device installed in their vehicle. Probation is often a concern for the court as well to determine whether any issues with alcohol is being dealt with effectively.

For third and subsequent offences, offenders can expect to receive a 120 day jail sentence, or four months in jail, along with a minimum of 10 year loss of licence and lifetime requirement to have the ignition interlock device installed if a person returns to driving sometime after the 10 year period.

If a person receives a fourth offence in the province of Ontario, then they will be banned from driving for life.

What Should I Consider When Facing a DUI in Ontario?

Drinking and driving law leads to individuals having to question what is most important to them as they move forward in the case.

For some individuals, avoiding a criminal record is the most important thing. For others it is maintaining their ability to drive. For some, it is equally split between both them. For subsequent offences, it can be as simple as avoiding a jail sentences.

What matters is what matters to you.

Can the Breath Testing Devices Malfunction?

It is possible that the Intoxilyzer 8000C or roadside screening device can fail. The roadside screening devices commonly fail due to mouth alcohol detection.

For example, if an individual has had something to drink within the last fifteen minutes, or have had something to smoke - a cigarette - in the last six minutes, this can cause the roadside screening device to malfunction.

However, since it is only used as a screening device, it is important that we also make sure that the Intoxilyzer 8000C at the station is operating properly. This involves not only looking at the test records from your test, but also from test records and results from other tests of people who have had their tests taken around yours.

DUI Defences

There are a number of different defences that can arise in a drinking and driving offence. Making sure that the machine is operated properly by a qualified technician is one of the first things that any good lawyer will do for you. Making sure that the officers did their job in the proper way, making sure that their searches of your breath are done according to Constitutional standards are very important. Other things, such as the police video taping you at the station while you use the bathroom, things such as the police watching you while you are in the cells or when you speak to a lawyer, and making sure that you have had the right and opportunity to speak to a lawyer of your own choice are all common defences in drinking and driving offences in Ontario.

Can I Beat My DUI in Ontario?

Drinking and driving offences are very complicated and, as a result, the range of odds to win a drinking and driving offence vary greatly based on the facts of the case.

Whether the officers did the right things, in the right order, with the right machines, all go towards determining whether you have a chance to win your case. Many case are won, however, what is going to be the most important to you is whether we can win your case.

How Long Will My Criminal Case Take in Ontario?

Criminal charges vary different and vary widely based on what kind of a criminal charge they are.
For most common offences, including assault, thefts, and drinking and driving charges, usually it takes between 60 and 90 days before the case has really matured to a point where enough information is in the hands of your lawyer to provide you with a good, honest opinion about what your chances are, and what the outcomes could be.
In a domestic assault case, often there are reasons why are trying to push those ahead to get you home as fast as we can, but those even will usually take 30 to 60 days before we're able to come up with either a resolution or a requirement that we are going to be going to a trial.
The easiest thing for a lawyer to say, but unfortunately the hardest thing for a client is to be patient.
We need patience, because the quick outcome is rarely the best outcome.

How to Choose the Best Criminal Lawyer

A good criminal lawyer is going to be somebody who can represent your interests.
Your interests are going to be different than many other individual's interests.
So, not just the just unique factors and facts of your case but the unique factors and facts about you.
So what you are looking for in a criminal lawyer is someone you trust, who can represent your interests and who can obtain the best results.
It's not always somebody who is an absolute fighter - it's not always somebody who is an absolute friend.
It's somebody who is able to balance between those and give you a realistic objective and realistic outcomes that are positive and meet your requirements.

First Court Appearances

At a first appearance date, a client should expect to have a lawyer attend, to obtain disclosure and adjourn the matter over for meetings with the Crown.

Itís not like in the movies. Itís not like in the United States, where a plea is entered, where information is brought forward, and where there is a preliminary hearing.

In Canada, a first appearance date is very often, and almost always, just a placeholder date so that information can be obtained by your lawyer, from the Crown, and then a meeting is set up with the Crown to discuss the case. Very little actually happens, contrary to common belief and to the disappointment to a lot of clients, if often takes longer than expected to deal with these matters.

Often, it takes 30 to 60 days to get the ball rolling on any case.

DUI Defence - False Positive

[INTRO Music]

Richard Aitken: Hi, I'm Richard Aitken, the founding lawyer of Aitken Robertson DUI Lawyers. With me today is Dr. Krishnan, a forensic alcohol toxicologist. It's been a long time Krish, how long do you think we've been doing this together for?

Dr. Krishnan : I think it's been about 20 years, I think. I met you a long time ago.

Richard Aitken : I think we both had hair then.



Richard Aitken : Now, a few minutes ago, Nicole did this testing where she had a bit of alcohol in her mouth, spit it out and was tested and we know that it showed, initially, about 600 mg - but within about 7 minutes it was completely down to zero. In other words it was not actually in her bloodstream (otherwise she would be dead.) But sometime we have a fact situation where perhaps a person leaves a bar, chugs the last beer, is stopped by the police about five minutes later and then the police officer does not ask when the person last had a drink - does the approved screening device sample then - and it gives a false positive. Could you explain what is involved with that doctor?

Dr. Krishnan : As you drink alcohol, some of the alcohol will be in the mouth. If you take a reading immediately after a drink, the alcohol in the mouth is in a much higher concentration in some cases and you then blow the entire amount of alcohol into the instrument at a very high concentration.


Dr Krishnan : Unless you give fifteen minutes for the mouth alcohol to dissipate, the alcohol concentration you get from the instrument cannot differentiate from where it comes from - it can be from the mouth or it can be from the bloodstream. So if you take a reading within fifteen minutes of when a person finishes consuming a drink, you might have the blood-alcohol reading contaminated by the mouth alcohol reading


DUI Defence Part I

Dr. Krishnan:

We are going to do an experiment as to what happens if a person has alcohol in the mouth - mouth alcohol - and not in the bloodstream. Sometimes it happens, by regurgitation or recent consumption of alcohol, there is a lot of alcohol in the mouth and it has not reached the blood. This is what we want to differentiate from.

She has swished some alcohol in her mouth and spat it out. There is nothing in her blood,
everything is in her mouth now. She is going to blow into the instrument let's see what happens.

It [the instrument] is now going to do an air blank - setting it to ZERO level of the instrument.

The air blank is zero as you can see on the display, then it now says BLOW. So Nicole is going to blow.

Take a deep breath and hold it as long as you can.

Okay, blow.


[Incremental Increases Reported]






You saw a reading of 600 milligrams. Obviously it is not in her blood stream because if she had 600 mg of alcohol in 100 millilitres of blood she would be down on the floor, probably in cardiac arrest. The peculiarity of the mouth alcohol is that as the alcohol evapourates into the environment, it will rapidly fall, as opposed to blood alcohol which may decrease at a rate of 15mg per hour.

DUI Defence Part II

Nicole: After finishing the first test, I wasn't in the least bit impaired. It has been about 5 minutes and we are going to do the second test.

Dr. Krishnan: Okay, take a deep breath and blow as long as you can.

[Ringing Sound from Machine Processing Breath Sample]

Dr. Krishnan: Zero. 8 Minutes and all the alcohol is gone - from 600mg - [the machine] actually said "range exceeded" which means about 600 and now she has nothing. All of the alcohol is gone. If it was blood alcohol, at the rate of 15mgs it would have taken 40 hours to go away but it now disappeared in 8 minutes. This [demonstrates] mouth-alcohol and not blood-alcohol.

*This experiment proves that recently consumed alcohol can provide a DUI defence, especially at low alcohol readings.

How does roadside test for impaired driving work when stopped by a police officer?

Blood Alcohol Content Test

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