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Does a DUI Conviction Count as A Criminal Offence?

There are two kinds of punishment that results from being convicted of a DUI (Driving under the Influence) charge. The first kind of punishment includes administrative and will result in license suspension. The second kind of punishment is under criminal law, as well as results in parole, fines, and jail time/prison sentencing. The conviction will go on your criminal record and whether you may later expunge it will depend on the charges.

You can lose your license

Since having your license suspended is an administrative act it’s possible to lose your license before being convicted of a charge of DUI, and it may be taken at the minute you fail or refuse to take the sobriety test — long before the case even heads to court. In some cases, your license is suspended the minute you’re arrested for the DUI even if you’ve been cooperative and taken all of the required BAC (blood alcohol content) tests they administer. In general, the blood alcohol content limit of .08 is the threshold in which a DUI arrest is made.

Is a DUI a Misdemeanor or Felony?

As for a criminal record, the following usually takes place. After the drunk driving arrest, you’ll be taken to court for the arraignment. If there is enough proof to go to trial, you’ll go to trial or likely work out a plea bargain with a prosecutor. After those processes comes the sentencing stage. In the majority of cases the DUI charge is going to be classified as a misdemeanor, yet it nevertheless can land you in jail for as long as one year; a felony charge may place you in prison for longer than one year.

Your lawyer can challenge the BAC test

Your defense attorney might challenge the blood alcohol content test, as well as its reliability by getting an expert witness to provide proof that you weren’t under the influence as you were arrested by giving documentary evidence proving that the BAC test equipment wasn’t recently or correctly calibrated.

Sentencing stage

The sentencing stage of the process is going to determine how the conviction is classified, which fines you’ll have to pay, the duration of time your driver’s license is going to be suspended, whether or not you’ll need community service or parole, what alcohol or drug program you’ll have to complete, and whether or not you’ll have to have an ignition interlock device placed onto your car.

DUI Is an Indication That You Aren’t in Control of Your Drinking

Most areas also have laws requiring that anyone who is convicted of drunk driving go through an alcohol assessment. A counselor is going to review your case to check whether your drinking behavior may be considered alcohol abuse or alcohol dependence. You might have to go into an alcohol education program or alcohol treatment program to learn how binge drinking and additional problem drinking may affect your life and health.

For more information contact the experienced DUI lawyer Matthew Gould today!

Do I Need an Attorney at a DUI Hearing?

Charges related to driving under the influence always involve a hearing in criminal court. You may be wondering whether it is truly necessary for you to hire an attorney to assist with your upcoming court case. After all, the expense of hiring an attorney can be significant when you consider the original consultation, the research required to build your case, and the time spent in the courtroom on your behalf. Is it really necessary to have an attorney at your DUI hearing?

There are several factors that you need to consider before you decide whether to hire an attorney for your hearing. Let’s take a closer look at some of the bigger questions you may have to answer before you head to court.

Can I represent myself?

The good news is that you don’t necessarily have to hire a lawyer to help with your DUI case. In criminal court, you do have the option to represent yourself and argue your own case. However, this doesn’t necessarily mean that you should choose to do so. More people than ever are deciding to try this tactic in order to save themselves some money. They don’t realize that they lack the intimate knowledge of the court system, the law, and the proper way to file paperwork. All of these things can work against them to make self‐representation an extremely poor choice.

How do I know if I have a strong case?

If you are on the fence about hiring an attorney, the best thing you can do is to get a consultation from a local attorney who is experienced with handling DUIs. Most law firms will give out consultations for little to no money, allowing you to get professional advice on the unique details of your case. This is the easiest way to ensure that you are on the right path with your case and argument. Even better, you don’t necessarily have to hire the same attorney who gives you the consultation. You’re welcome to interview others to find the perfect fit for your case.

In many situations, the court might offer you a plea deal for your DUI if there were no aggravating factors and it was the first offense. You may be tempted to accept this offer immediately, but a good attorney can often negotiate even better terms. During the consultation, you might want to ask questions about their success with negotiating plea deals for clients.

What do I bring to the consultation?

When you consult with a potential attorney, you need to remember to come to the consultation prepared. This is the only way that they can offer you accurate legal advice. Bring all of the documents related to your arrest and the case. This gives them the best glimpse into what you might be facing in the courtroom.

Standing before the court for a DUI offense can be nerve‐wracking, which is why you need an experienced DUI lawyer by your side. Give Matthew Gould a call for a consultation today!

Are DUI Checkpoints Illegal?

 

Oftentimes, local law enforcement agencies will set up checkpoints alongside roads to detect drivers who are travelling under the influence of alcohol or drugs or who are travelling with alcohol in their system that is above the legal limit. It’s most common around the holidays when the authorities know that more folks are going to be out drinking and driving, like Fourth of July and New Year’s Eve.

Since the DUI checkpoints consistently ensnare folks who have not been drinking and driving, questions rapidly came up about whether these checkpoints were an unreasonable process of search and seizure. The U.S. Supreme Court weighed in on that question within a 1990 decision and found that DUI checkpoints are indeed a valid and legal method of law enforcement. Follow along as Matthew Gould assists in explaining the answer to that burning question: Are DUI checkpoints illegal?

The Fourth Amendment and DUI Checkpoints

The U.S. Constitution and the Fourth Amendment states that individuals have a right against the unreasonable process of searches and seizures. Searches often will include a search warrant issuance, but not always. A search and seizure may happen without a warrant underneath specific circumstances so long as the search is reasonable.

The majority of the time, a search is reasonable if there’s probable cause for the authorities to believe that it’s necessary. For example, a search incident to an arrest generally is considered reasonable since there’s already probable cause to think that the subject of the search did something wrong.

A search and seizure that randomly occur or that are too intrusive or burdensome, however, generally won’t be considered reasonable by the court. Any proof acquired as a result of this type of search is going to be removed from the official record in a court case.

Enough Probable Cause?

A DUI checkpoint poses an intriguing application of the rules of the Fourth Amendment. Stopping the car’s driver is considered a seizure as the individual must pull over and cannot leave again until the law officer permits it. As the law officers at the DUI checkpoint stop each driver without any personalized suspicion, it’d appear at first that the authorities wouldn’t have enough probable cause to perform the seizure of the drivers.

However, in specific cases in which the kind of seizure is minimally intrusive, the U.S. Supreme Court made a decision that a balancing test is more suitable for determining the reasonableness of a search than the standard of probable cause. In a case that concerned DUI checkpoints mentioned inside the introduction to this post, Michigan Department of State Police versus Sitz, most of the U.S. Supreme Court Justices found that the needs of the state to keep drunk‐driving accidents from occurring outweighed the minimal intrusion upon sober drivers who get caught up in the DUI net. Thereby, the Justices argued that DUI checkpoints didn’t constitute unreasonable searches and seizures.

For more information on DUI checkpoints contact the criminal defence representation of Matthew Gould today!

The Duty of Confidentiality

Trusting your attorney can be a difficult thing, particularly if they are someone that you have never met before. Most people are aware that their lawyer has some obligation to protect the information that they disclose through the attorney‐client privilege, but is that the only thing that protects them? The good news is that your attorney is also going to be bound by the duty of confidentiality. It helps to know exactly what this term could mean for you and your upcoming case though.

If you want to be certain that your attorney is following the rules, you need to understand the basics of this concept. Let’s take a closer look at the duty of confidentiality and what it means for your case now.

What is Duty of Confidentiality?

According to the Canadian Bar Association, the duty of confidentiality states that the attorney cannot reveal any information about the relationship with their client without the client’s informed consent to do so. A client must know all of the potential risks and alternatives of revealing information before they can give their direct consent to share the information with others or with the court. Without doing so, the attorney could face serious penalties from the bar.

On the other hand, there is also implied consent that authorizes the attorney to share information with others without receiving formal approval. For example, they may share details of a case with other lawyers in the firm for a second opinion or extra help doing research. Unless a client specifically asks them not to share information this way, an attorney can assume that there is an implied authorization to do so when they are hired.

The duty of confidentiality also applies to clients who former clients or those who are just interviewing lawyers. This means that an attorney who has been interviewed to represent you cannot reveal that information to anyone else who comes along. It cannot be used to disadvantage you in any way.

Are there Exceptions?

Unfortunately, the duty of confidentiality does not apply all of the time. It can occasionally be waived when other circumstances arise that stand in the way of someone’s safety or when sharing the information could be more beneficial for the court case. Here are just a few of the times when attorneys may make an exception to the duty of confidentiality:

  • When someone is in imminent danger of death or bodily harm
  • To prevent a crime or fraud that is likely to injure the property or financial status of another person
  • To prevent, mitigate, or rectify substantial property or financial injury to another person
  • To obtain advice on the ethical path
  • To establish a claim or defense on behalf of the attorney
  • To comply with a law or court order
  • To identify or resolve conflicts related to a lawyer’s change of employment

Understanding what the duty of confidentiality means for your case is essential to helping you successfully win a case. When you need recognized criminal lawyers in Winnipeg, be sure to give Matthew Gould a call!

Testing for Marijuana Impairment

When a police officer pulls someone over for suspected drunk driving, they can use a breathalyzer to determine someone’s level of impairment. This estimates a driver’s blood alcohol content based on the amount still on their breath. Many people mistakenly believe that this same system can be used to test for marijuana impairment while driving. Unfortunately, there are still no reliable systems in place to test drivers who could be driving under the influence of this drug.

If there are no set standards in place, how are police officers able to charge drivers with driving under the influence when they are using marijuana? The entire system is rather subjective right now, but let’s take a closer look at what officers are really able to do when they pull someone over.

Blood Tests

If a police officer suspects that a driver is under the influence, they can request a blood test to determine how many nanograms of THC are in the bloodstream. This doesn’t necessarily mean that someone was driving under the influence, but most courts will consider it a permissible inference that it is true. Unfortunately, police officers and doctors are still working on developing a reasonable cutoff point that would prove someone is intoxicated while driving.

The results from these blood tests are very difficult to prove in a court hearing. Some of the hesitancy to use these results comes from the fact that THC can remain in the body for up to thirty days. Simply because the drug test came back positive for THC does not mean that a person was high while driving. Officers and scientists still have a long way to go before they can accurately determine the level of THC in the bloodstream and whether someone is considered intoxicated by it at a particular point in time.

Subjective Experiences

Police officers can’t wait until these tests become reliable to stop individuals who could be driving under the influence. This means that they are using subjective experiences to guide their decision making. The first thing they will look for is evidence that you have been using, including any drugs or paraphernalia in the vehicle. With this knowledge readily available to them, officers can easily move onto the next step.  

Most officers will use some variation of the standard sobriety test if they believe that you might be under the influence. They examine the size of the pupils and how well you can control your eye movement. Blood pressure, muscle response, balance, and coordination are all tested to determine if you might be under the influence of a mind‐altering drug like marijuana. The notes and responses from these tests often serve as proof that you were driving under the influence.

If you have been charged with driving under the influence of marijuana, you should know what your rights are. You need an effective criminal defence lawyer like Matthew Gould to help guide you through the process. Contact him today to see how he can help build an effective case for you!

Controversial Stuff About Bill C‐75

What Happens in Winnipeg Criminal Court

A lot of media coverage has been given to the newly released Bill C‐75 that was written to help reduce the wait time in Canadian courts. At face value, this new bill promises to deliver a speedier trial that many people could benefit from. Forcing courts to give people trials in a reasonable amount of time is essential to our justice system, but this bill may not be able to deliver on its promise. It holds far more content that could be detrimental to the justice system as a whole.

Citizens should all be aware of what this bill is likely to mean for them and for everyone who may be involved in the court system. Here are a few of the more controversial topics included in Bill C‐75 that you will definitely want to know about.

Elimination of Preliminary Inquiries

A preliminary inquiry is typically used to help determine the strength of a case prior to the trial. It used to be available to every adult facing an indictable offence, but the new bill limits that only to those facing life in prison. While this would certainly reduce a lot of traffic in the courtroom, it may not be beneficial to those involved in the justice system.

Despite the fact that lawyers and their clients are entitled to know available evidence before trial, many still do not understand the strength of the Crown’s case. Many would argue that the preliminary inquiry helps lawyers to test the evidence, ensure a fair trial, and use their court time effectively. Without this essential stage in the trial, we may actually cause longer times and cases might tie up the court system.

Elimination of Peremptory Challenges

It should be no secret that many juries lack participation from minority individuals. Systemic racism is alive and well in our court system, even if many don’t realize or accept it. One of the important ways that Bill C‐75 aims to change jury selection is through the exclusion of peremptory challenges. These were used by attorneys to exclude certain individuals from the jury without an identifiable cause or explanation. This may have been done to remove jurors who are more likely to vote a certain way based on their own identity (including their gender, age, or race).

The bill aims to do away with these challenges altogether which could result in its own set of problems. It may be better to limit what attorneys can do to alter the jury. Either way, it is beneficial to see that the bill is addressing a long overdue issue in relation to these peremptory challenges.

Changes are constantly being made to the criminal justice system. It can be difficult for the average person to keep up with all of these bills and modifications. This is why you need an effective criminal defence lawyer like Matthew Gould on your side. Give him a call today to see how he can help protect your rights in the courtroom!

Impact of a Criminal Record

how to get a criminal record check

You thought that you already served the time for your latest crime, but you might not be done just yet. Having a criminal record will impact you for the rest of your life, no matter how you attempt to live your life to the contrary. Even once your sentence is over, the impact of it will follow you for years to come. It may make other areas of your life significantly more difficult as you try to reestablish yourself in society.

What is the real impact of a criminal record? Find out what you could be facing when you have charges on your official record.

Struggles with Unemployment

Almost three‐quarters of all businesses make it a standard practice to run background checks on their new employees. The top reason that most of them make this a priority is to search for a criminal background. After all, this simple report will detail any felonies, misdemeanors, arrests, and warrants that you currently have against you. Employers do actually have the right not to hire you based solely on the contents of your background check. This may be due to enforcement of certain rules, workplace safety, or security concerns.

Having a difficult time finding a job may lead to other challenges in your life, particularly when it comes to your finances. You may have a more difficult time paying your rent or purchasing groceries without assistance. Financial dependence is a real struggle for those with a criminal record who have a hard time finding a well‐paying position.

Child Custody Battles

After you serve your sentence or pay your fine, you may feel like your life is perfectly back to normal. You might even attempt to regain custody of your children. In other situations, you might be going through a divorce where you would like to win full or partial custody of the children. Either way, you will have a hard road ahead of you if you have a criminal record. The difficulty may depend on the type of charges found on your background check. For example, violent crimes or domestic violence will make it less likely for a judge to grant you custody of your children.

More Severe Consequences

If you haven’t learned the lesson from your actions, you may face more serious consequences the next time. Defendants who have a previous criminal record often have longer sentences, heavier fines, and more severe punishments when the court can see their prior offenses. This is definitely a reason to start changing your actions and avoid heading back to the court system. It will only make the other impacts of your criminal record more significant.

Try to avoid having a criminal record at all costs. You need the help of a practiced criminal lawyer who can encourage you to know your rights and defend yourself when the time comes. Matthew Gould can help you protect yourself and possibly avoid some of these major impacts of having a criminal record. Contact him today for more information on how he can help you!

Pardons

Driving after drinking alcoholDo you wish that you could get your DUI off of your criminal record? Fortunately, driving under the influence is one of the most commonly pardoned crimes in the country. You can go back to living your life almost as if the crime never happened. However, you need to understand fully how his program works, how to apply for a pardon, and what kind of timeframe you can expect from a pardon.

What are Pardons?

The Parole Board of Canada is responsible for issuing pardons to the citizens who have served their sentence and demonstrated a law‐abiding nature for a specific period of time. Pardons are now often called record suspensions. Receiving a pardon allows you to have your criminal record removed from the Canadian Police Information Centre database.

It should be noted here that a pardon does not erase the conviction. Instead, the record will be kept separate and apart from other criminal records. In the case of a former sexual offence, the record suspension will still be flagged in the system in order to prevent an offender from doing harm to a vulnerable group of people.

What is the real benefit of receiving a pardon? Getting a pardon means that your record will no longer show up when you apply for jobs or more educational opportunities.

How Can You Apply for a Pardon?

Applying for a pardon involves a lot of paperwork and the associated documentation to support it. You will need to get copies of all of the following paperwork:

  • Convictions, Conditional and Absolution Discharges from the Criminal Record from the RCMP
  • Proof of Conviction documents, if required
  • Court Information
  • Military Conduct Sheet
  • Local Police Records Check
  • Proof of Citizenship of Immigration Documents
  • Photocopy of your Document to Support your Identification

Once you have all of this paperwork in hand, you will need to fill out the required forms. There are three separate forms known as the Record Suspension Application Form, the Measurable Benefit/Sustained Rehabilitation Form, and the Schedule 1 Exception Form.

When all of the appropriate paperwork is gathered, you can mail it in with a $631 processing fee. For more information on how to process the record suspension paperwork, you can follow this step‐by‐step guide offered by the Parole Board of Canada.

What Are the Times Associated with Pardons?

Unfortunately, you can’t immediately apply for a pardon in Canada. The waiting period associated with a record suspension will vary depending on what sort of crime was committed. The first step is to complete all of your sentences, including fines, imprisonment, and parole. A prohibition order does not need to end prior to starting the waiting period.

Once these steps are over, you must wait five years for a summary offence or ten years for an indictable offence.

Getting a pardon is a great way to improve your future chances of obtaining a job or getting into a good school. You should know how to follow these steps to obtain the record suspension you need. Next time you get into trouble, you need a competent DUI lawyer who can help lessen your sentence. Give Matthew Gould a call to see how he can help you!

Ignition Interlock Program

Drunk driving can cause some serious consequences for your health and the safety of those around you. You should never be behind the wheel of a car once you have had something to drink. However, that doesn’t change the fact that many people do actually drink and then drive themselves around town. A new device might be changing how frequently this happens with the Ignition Interlock Program.

What is the Ignition Interlock Program?

The Ignition Interlock Program is often mandatory, though there are a few individuals who voluntarily opt in. Manitoba law dictates that you must participate in this program if you have had any type of impaired driving offence. You will be transitioned into the program once your driver’s licence is being reinstated and the suspension has expired.

The program itself is an in‐car breathalyzer that is wired directly into the car’s ignition. It is located just inside the car on the driver’s side, making it easy to blow into each time you enter the vehicle. In order to hold you accountable for making good decisions while driving, the device keeps a record of every sample you give. When you haven’t been drinking, the car will start normally. If it detects any alcohol on the driver’s breath, the vehicle will not be able to start.

Keep in mind that the ignition interlock device will take your breath samples at random throughout the ride. You will have to provide one to avoid it recording the event and setting off an alarm system.

How Long Does It Last?

How long can you expect to need the Ignition Interlock Program? This depends on how many prior offences you have for impaired driving. Once your licence is reinstated, you will have to figure out which term length you qualify for. The following are the typical term lengths based on the number of convictions you have had:

  • First and second convictions: One year in the program
  • Third conviction: Three years in the program
  • Fourth or subsequent conviction: Lifetime in the program

What Does It Cost?

Unfortunately, it isn’t free to participate in the Ignition Interlock Program. The fees associated with it are similar to paying a hefty fine for your actions and convictions. Prepare yourself now for the upcoming costs so that you can afford them when your licence is reinstated. All of the obligations will be your responsibility.

  • Administration Fees: $250
  • Installation Charge: $145
  • De‐Installation Charge: $50

If you can’t afford the charges, there may be financing available through Manitoba Public Insurance. In addition to the one‐time charges for the device itself, you will also be subject to an $89 monthly fee for the monitoring.

The Ignition Interlock Program holds a lot of promise for preventing drunk drivers on the streets of Winnipeg. If you feel that you might be facing charges related to impaired driving, you might need a recognized criminal lawyer. Be sure to give Matthew Gould a call today to see how he can help you to understand your rights and protect yourself in court.  

License suspensions

Criminal Code Section 253 Impaired Driving in Canada

 

Not all of the negative effects of driving after consuming alcohol or drugs come from the Criminal Code. Most provinces allow for license suspensions in addition to criminal charges—or in some cases, even without criminal charges.

What is a license suspension?  

A license suspension is a temporary loss of your ability to drive legally. When your license is suspended, you are not permitted to drive any type of vehicle, on or off the road. Your vehicle may be taken from you and impounded at your expense. Reinstatement of your license costs $50, and for certain suspensions you may also be forced to retake a driving test (at a cost of $30 – 175) and/or attend programming with the Addictions Foundation of Manitoba (costing over $600). You will also be forced to pay an additional driver’s license premium.

License suspensions are issued by the provincial driver’s licensing agency (in Manitoba, this is Manitoba Public Insurance). They are different than driving prohibitions, which are issued by the Criminal Code.

How can my license be suspended?

Your license may be suspended if you fail a roadside breath screening, refuse to comply with a police officer’s demand for a physical coordination test or breath sample, or have a blood alcohol content of 0.05 or higher. Note that this is lower than the blood alcohol content of over 0.08 required for a criminal charge. You can also have your license suspended if a police officer believes you are too impaired to perform a coordination test or provide a breath or blood sample.

How long do suspensions last?

If a police officer believes you are too impaired to perform a coordination test or provide a sample, your license will be immediately suspended for 24 hours.

If you fail a coordination test, have a BAC between 0.05 and 0.08, or get a result of “warn” on an ASD, your license will be immediately suspended for 3 days (if it is your first offence). This length of time increases each subsequent time you commit the offence:

  • Second offence within 10 years: immediate 15 day suspension
  • Third offence within 10 years: immediate 30 day suspension
  • All subsequent offences within 10 years: immediate 60 day suspension

If you have a BAC over 0.08, refuse to participate in a coordination test, or refuse to provide a sample, your license can be immediately suspended for 3 months.

Suspensions following conviction

If you are convicted of a driving offence under the Criminal Code, you will be subject to an even longer license suspension:

 

First offenceSecond offenceThird offenceSubsequent offences
Impaired driving1 year5 years10 yearslifetime
Driving “Over 80”1 year5 years10 yearslifetime
Refusal to provide a sample2 years7 years10 yearslifetime
Impaired driving
causing bodily harm or death
5 years10 yearslifetimelifetime

 

In order to get your license back after a criminal conviction, you will also need to participate in MPI’s Ignition Interlock program.

Driving prohibitions

While the effect of a driving prohibition and license suspension is basically the same (that is, you are prevented from legally driving), it is important to understand the differences. A driver’s prohibition comes from the Criminal Code and can only be issued upon a criminal conviction for certain offences: impaired driving, driving over 80, or refusal to provide a sample . A license suspension can be issued by MPI for a wide variety of reasons, including things like speeding.

Driving prohibitions under the Criminal Code have the following sentences:

  • First offence: 1–3 years
  • Second offence: 2–5 years
  • All subsequent offences: minimum 3 years

These prohibitions do not begin until any prison sentence imposed by a judge ends. Driving while suspended or prohibited is a separate offence under the Criminal Code and can lead to a sentence of up to 5 years.

Do they affect my criminal record?

License suspensions do not show up on your criminal record, but they will show up on your driver record through MPI. If your suspension is the result of a criminal conviction, however, your conviction will appear on your criminal record.

Disclaimer: this article is for information purposes only and is not legal advice. For legal advice, contact Matt Gould now to discuss your case.