One of the biggest and most common mistakes people make, when they are married, in a common law relationship, dating, or recently separated and are no longer together is filing a complaint of domestic assault against the other person as a means of “getting even.” Using the Justice System in this manner has serious consequences for the accused.
Many complainants (victims) claim they were assaulted by their loved one, with the notion they can request the charges be dropped later, after they have made their point or “gotten even.” However, the law does not regard the wishes of the complainant when it comes to investigating a claim of domestic assault and filing charges, if there is sufficient evidence to support the initial claim.
Even in cases where the complainant later states their desires to have the charges dropped, the Crown prosecuting lawyers do not take this into consideration. Rather, they are bound to uphold the legal system and laws related to assault offences. As such, if it has been determined there is sufficient evidence to charge the accused with domestic assault, they will be arrested and have to resolve the matter in court.
While the Criminal Code of Canada does not have a specific offence for domestic assault offences, the legal system does rely upon the definitions of Assault offences as contained within the Criminal Code. In addition, in many cases, there are Crown prosecuting lawyers, who exclusively prosecute domestic assault offences. The Crown and Courts recognize the seriousness of domestic assault and often treat those accused of this criminal offence with a zero-tolerance attitude.
Depending upon the type of domestic assault offence one is charged with, there is always the potential of being imprisoned if convicted and found guilty of the offence. For instance, a general domestic assault offence, prosecuted as an indictable offence has a maximum imprisonment period of five years, whereas if the case is prosecuted as a summary conviction, there is still a maximum eighteen month imprisonment period.
Additionally, just like Assault offences, there are variations of domestic assault offences, which includes, but may not be limited to, aggravated assault, assault causing bodily harm, and assault with a weapon. The Crown and Courts view these as more serious types of domestic assault offences. Therefore, they do have more severe penalties and longer maximum imprisonment periods.
Two types of DUI charges in Calgary are “Impaired Driving” and “Driving over 80.” Impaired driving means operating a motor vehicle while your driving abilities are impaired either as a result of drinking or using drugs. Driving over 80 means operating a motor vehicle while your blood alcohol level is more than 80 milligrams of alcohol per 100 milliliters of blood. It is important to mention that “Driving over 80” is also “Impaired Driving.” In some cases you could be charged with both types of DUI offences.
For both types of DUI offences, the police must notice some form of erratic driving behaviour, such as weaving back and forth in the lane or failure to stop at a traffic signal. This is called “reasonable grounds” and provides a reason to initiate a traffic stop and question the driver and their behaviour. The police cannot stop you unless they have reasonable grounds. Without reasonable grounds, should you be stopped, the evidence you were impaired or driving over 80 can be challenged since there was a lack of reasonable grounds for the traffic stop.
What Happens After Being Stopped?
Upon being stopped, if the police notice certain signs, such as the smell of alcohol, open alcohol/beer containers in the vehicle, slurred speech, or red, watery, or blood shot eyes, then the police might have the right to make further inquiry about the driver’s consumption of alcohol and/or drugs. Normally, upon suspicion of either driving impaired or over 80, the police will ask you to perform certain roadside sobriety tests.
If you fail these tests, then the police can request you provide a sample. Refusing to provide a sample carriers with it the same penalties as impaired driving and driving over 80, if you are convicted and found guilty. If the police do not have a roadside breathalyzer, they will transport you to the local police station where two samples are collected. Even in cases where the police collect a sample roadside, they still have to take you to the local police station and collect two additional samples.
After arriving at the police station, the police may request to interview you further as a means to substantiate you were driving impaired or over 80. However, prior to questioning you, the police must inform you of your right to counsel before being questioned. The police have to offer you the option to speak to a Calgary criminal defence lawyer and make this offer promptly before they can interrogate you further about the drinking and driving offence.
Why Do I Need a DUI Defence Lawyer?
While the law does allow you to represent yourself in criminal matters, including drinking and driving related offences, you probably are unaware of the technicalities and intricacies of the laws surrounding DUI-related offences. Retaining the services of a skilled and knowledgeable DUI defence lawyer provides the opportunity to build a strategic defence to the charges. Many of these defences tend to revolve around police error or other such technicalities where your rights might have been violated.
Keep in mind the above information is presented for informative purposes only and should not construed as actual legal advice. If you require legal advice for an “Impaired Driving” or “Driving over 80” offence, contact the law offices of Paul Gracia today at 403-975-4529 for a complimentary consultation appointment.
If you or a loved one has been arrested, an essential part of criminal due process is the bail hearing. This process is sometimes referred to as Judicial Interim Release. The purpose of bail is to allow the accused the opportunity to prepare their defence to the criminal charges and not be required to remain in police custody until their actual court trail. Securing bail is always vital to ensuring you are able to properly prepare your defence with assistance from your criminal defence lawyer in Calgary.
The Criminal Code of Canada allows for several types of bail and temporary release for criminal offences. The bail processes can vary from one police agency and province to the other. Some agencies do provide a bail hearing immediately after being arrested and charged with the offence. Other agencies require a person to remain in custody until they are able to appear in front of a judge for the hearing. In the event a person is detained, they are normally taken downtown to the Calgary Court Services Section until their bail hearing.
Finding out whether someone has been detained is often difficult, as the police normally do not release any information to individuals. If you believe your loved one has been arrested and is being detained, the best thing you can do is contact a criminal defence lawyer, as police will release information to lawyers. The only other exception, where police will provide you with information is in cases where a youth offender was arrested and you are their custodial parent.
Two of the most common types of release the police and courts use in Calgary are called Promise to Appear/Appearance Notice and Recognizance. The circumstances, criminal offence and evidence the police have will determine which form of release someone is offered.
Promise to Appear/Appearance Notice Release
This type of release is normally used for people with no prior criminal history or only minor infractions on their criminal records, as well as those charged with minor criminal offences. Securing this form of release is entirely at the discretion of the arresting police department. It does not require a formal bail hearing in front of judge. There are several conditions the police could require in order to grant release, as follows:
- Promise to Appear
- Promise of Identification/Report to Police
- No Contact with Specific Persons
- No Visiting Specific Addresses or Locations
- Adhering to a Curfew
- Keeping the Peach
- No Further Criminal Offences
- No Alcohol Consumption
- No Traveling
Even if you do not entirely agree with the conditions for this type of release, it is often better to accept them, then discuss them in greater detail with your lawyer. Your lawyer can request they be reviewed and changed by the judge at your initial court hearing
This type of release is used for more serious criminal offences, where the police and court believe there is a higher risk of the accused fleeing, the accused poses risks of committing further offences, or has a substantial criminal record. You will be required to secure your release with some form of cash deposit or cash surety. In some cases, the judge may grant release with a no cash deposit option, where the cash only has to be paid in the event the conditions for the release are violated. The judge does reserve the right to impose additional terms for the release, similar to those imposed by the police for a Promise to Appear release. However, getting the conditions changed is much more difficult.
With both types of releases, the police and judge look at three factors to determine whether release should be granted. These include:
- Whether detention is necessary to ensure the accused will attend all court appearances.
- Whether detention is require to protect the public from the accused or prevent the accused from committing further criminal offences.
- Whether the Crown has a strong case and the seriousness of the offence and detention is necessary to maintain the public’s confidence in the justice system.
Keep in mind, this information is a generalization into the bail hearing processes and should not be used as actual legal advice. There are always exceptions and specific circumstance for every single case. As such, it is always in your best interests to consult with a Calgary criminal defence lawyer, like Paul Gracia, to discuss your case in further detail. For help with your bail hearing and criminal charges, call Mr. Gracia at 403-975-4529 now.
Some people are surprised when they are arrested and charged with a DUI offence, even though they were not driving and only sitting behind the wheel of their parked car. The Criminal Code of Canada and the Highway Traffic Act define several different types of drinking and driving (DUI) offences. Among these, is a special one called “Care or Control.”
A Use and Car offence is where the alleged defendant was sitting behind the wheel of a parked car with easy access to the vehicle’s key. Unlike being stopped for Impaired Driving or Driving Over 0.80%, whether to charge someone with a Care or Control offence, is left up to the police to determine if the driver actually is intending to drive or has driven recently, and what they deem to be considered easy access to the vehicle’s keys.
For instance, if the car is parked, but the engine is running, then more than likely, the police will charge the suspect with Care or Control. However, an arrest is not made until after the police have collected a sample to determine the alleged defendant’s blood alcohol level. The sample is normally collected by using a breathalyzer machine and having the suspect blow into the device. If the blood alcohol level is over 0.80%, then an arrest probably will be made.
On the other hand, if the person is sitting in the passenger seat or back seat, and the keys are not in the ignition, the police must provide supporting evidence indicating they believed the suspect was going to attempt to drive while still intoxicated. This does not necessarily mean they will not still make an arrest, it just means the defendant would have grounds to build a strong defence against the charges.
The consequences and punishments for pleading guilty to, being found guilty in a court of law, or taking a plea agreement for a Care or Controloffence are similar to those for Impaired Driving and Driving Over 0.80%. First-time offenders of a Care or Controloffence incur a minimum fine of $1,000. Their driving privileges are also suspended for a specific period of time. In addition, your insurance rates can increase. Once driving privileges are reinstated, you could be required to pay for the installation of an interlock device. Further, there is always the possibility of being imprisoned, depending upon the exact circumstances of the case.
If you have been arrested and charged with a Care or ControlDUI offence, do not gamble with your future. This offence is just as serious had you been stopped and charged with Impaired Driving or Driving Over 0.80%. You need the help of an experienced Calgary criminal defence lawyer to prepare a strategic defence to fight the charges and receive the best possible outcome.
Keep in mind the above content should not be used for actual legal advice, but for informational purposes only. In order to receive actual legal advice, you need to contact Gracia Law at 403-975-4529 and schedule a free case evaluation appointment today.