Video evidence in DUI cases: sometimes it can help get the charges dropped.

Those charged with impaired driving related offences in Ontario may gain an advantage by the release of video/CCTV evidence, which may lead to getting the charges dropped/withdrawn or an acquittal in court.

In most Ontario DUI cases virtually everything is recorded on video via bodycams, police in car cameras, breath room CCTV, booking, sally port, etc.

While a lot of accused think that impaired driving charges are open/shut cases this is far from the case in Ontario. Impaired driving/over 80 mgs/refusal cases are often fought on how the police collected evidence during the arrest process. This includes cases where the accused is charged because the police officer was of the opinion they were impaired, failed or refused to provide a breath sample, and/or in cases that the accused blows over 80 MGs of alcohol per 100 MLs of blood.

Sometimes the video will show that the accused may not have been drunk, may not have legally failed or refused a breath sample, or that their BAC level may have been tested improperly.

The police may have formed the wrong opinion of what actually happened.

The police may have had an inaccurate impression of the accused's intoxication level (by alcohol or drugs), tunnel vision, came to the conclusion that they failed or refused to provide a breath sample too fast or without legal justification, or conducted breath or blood testing analysis in a way that violated the accused’s rights or may raise reasonable doubts towards its legality.

A lot of people charged with DUI/impaired driving offences in Ontario just assume they have no case because they were actually drunk at the time, or in their mind, guilty. The courts do not operate this way. In Canada, the legal standard is guilty beyond a reasonable doubt and there are many ways that even a person who is factually guilty may not be legally guilty. Sometimes DUI charges can be dropped without a trial if the accused's lawyer raises these issues with the Crown Attorney or court Judge.

When can my criminal defence lawyer obtain the CCTV/video evidence in my impaired driving or refusal case?

Video evidence in DUI cases in Ontario is normally available close to or shortly after the first court appearance date. It is not going to be available immediately after the accused is arrested. The Crown Attorney will need to receive it from the police and vet it before providing it to the accused’s lawyer. The police are also not expected to provide it to the Crown immediately. This being said it is an extremely important part of all impaired driving related defences in Ontario and will eventually be provided as part of the disclosure.

As a general rule, meaning not all the time but most of the time, video disclosure is usually provided after initial disclosure. As of 2021, initial disclosure is usually provided on PDF and video files through the Digital Disclosure Hub in Ontario, Canada.

If the Crown Attorney takes too long to disclose the video evidence in the case it could be grounds to have the charges dropped (withdrawn) or win an acquittal at trial.

Some DUI accused expect all video evidence will be available and disclosed immediately upon arrest. While the system in Ontario does not work that way, the Crown is obligated to disclose it within a reasonable amount of time. Failure to do so can prejudice the accused’s case and their ability to make informed decisions regarding their case.

The accused may be able to participate in certain time sensitive programs (Stream A or B) in Ontario and it is important for them and their lawyer to have all the evidence before making such decisions which involve pleading guilty to the crime.

If I was actually drunk at the time of driving, how can the video at the roadside and at the police station actually help me?

You may have been drunk but this does not mean that you appeared drunk on video. Some people can drink 2 beers and appear drunk, others can drink 10 beers and appear sober (despite not actually being so). When it comes to alcohol levels everyone has a different tolerance level. For those who have high tolerance levels this does not mean they are not over 80 or legal to drive but they may not appear as intoxicated as others with a much lower BAC.

The video/CCTV footage may also show that their BAC readings were improperly obtained, their Charter rights were violated, or that they should not have been charged with failure or refusal to provide a breath sample. Even if someone is driving drunk, if the police collected the scientific evidence improperly or misjudged their impairment in the eyes of the court/Crown they may avoid being convicted.

In some cases the roadside video does not show strong evidence of impairment because the accused has a high tolerance level to alcohol. They will also be charged with being over 80 or refusal but there may be problems with how that evidence was obtained or analyzed allowing the accused to walk free if the case is properly defended by their lawyer to the Crown Attorney and the court. The video evidence can help in both challenging the level of impairment in court and in some cases how the BAC levels were determined.

In DUI cases the options of the accused are time sensitive so it is important that they hire a criminal lawyer as soon as possible to raise any potential exonerating issues with the Crown Attorney (prosecutor) and the court.

While the Crown is not expected to provide all of the video evidence the day after arrest to the accused, they are on a somewhat short leash to provide it. Such video evidence can provide many avenues for the accused’s lawyer to get the charges dropped, withdrawn, reduced down to a careless driving or something else, or win an acquittal at trial.

In addition to video evidence other cases are won on factors related to evidence found within the police notes, testimony of third party witnesses, Charter applications, and more. No DUI case is open/shut in Canada. In fact, they are some of the most contested types of criminal charges.

Some people end up getting their charges dropped or being acquitted at trial who otherwise would have probably just pled guilty had they not received legal advice from a lawyer.

If you are charged with an impaired driving offence in Ontario, Canada (DUI, operation while impaired, over 80, failure/refusal) give us a call for a no obligation opinion of your case.

Call us today.
You don't have to jeopardize your future or waste thousands of dollars on excessive legal fees. We provide effective and affordable lawyer representation for those charged with impaired driving offences throughout Ontario.

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Are you a lawyer? If you are defending an impaired driving related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.

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