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You’ve been charged with driving under the influence (DUI) – now what?

You’ve been charged with driving under the influence (DUI) – now what?

You’ve spent the evening catching up with old friends.  You socialized over a nice dinner and had a few drinks as the night wore on.  Unfortunately, you made the choice to drive home and along the way you were stopped by police and tested for alcohol and drug impairment.  You’ve been charged with impaired driving under the Criminal Code of Canada.  What happens next?  Here’s what you need to know:

Driving under the influence is against the law in Canada.  Impaired driving is defined as operating any kind of vehicle, vessel, aircraft or railway equipment while impaired by alcohol or drugs.  Any amount over 80 mg of alcohol or over 5 ng of Tetrahydrocannabinol (THC) per ml of blood results in immediate consequences.  Other drugs and medical conditions can also cause impairment.  Canada’s updated law now states that you can be convicted if your blood concentrations are over these numbers within two hours of driving.

Statistics and Trends

Impaired driving is one of the most common criminal offences and is among the leading criminal causes of death in Canada.  In 2017, Canadian police reported 69,000 impaired driving incidents.  In addition, while alcohol-impaired driving is down over the past several decades, drug-impaired driving is on the rise.  Incidences of drug impaired driving convictions doubled from 2014 to 2015 and in 2017, 3,500 drug impaired driving incidents were reported.  Men, those who play on sports teams, and those who are 20-24 years old (as reported by police) are more likely to engage in impaired driving.

Saliva and Blood Tests

When pulled over, police officers can demand a preliminary breath sample that tests for blood alcohol levels. They can do so without any reasonable suspicion of impairment.  In 2009, a provision to the Criminal Code allows police to carry out compulsory roadside testing of drug impaired drivers. Oral fluid drug screeners are used to detect some drugs in saliva, if an officer reasonably suspects that a driver is impaired by drugs.  Reasonable suspicion can include signs like red eyes, twitching, agitation, slurred speech, and odd behavior.  Oral fluid drug screeners serve as a basis for additional blood testing for further confirmation of impairment.  Police can also demand a driver submit to a Standard Field Sobriety Test or a Drug Recognition Expert Evaluation.

Penalties and Fines

Federal penalties for impaired driving (that doesn’t involve harm or death) carry a maximum of a 10 year prison sentence.  The minimum penalties range from a minimum mandatory fine of $1000 for first offenses to at least a 120 day prison sentence for third offenses.  More severe penalties are reserved for those convicted of impaired driving causing bodily harm or death.

A summary conviction can be given if 2-5 ng / ml of THC is measured in the blood.  Other substances, like ketamine, PCP, cocaine, and methamphetamine can be detected and carry a charge if they are detected within 2 hours of driving.

Individual provinces within Canada have their own sanctions over and above the federal laws.  For example, in Alberta, those who are suspected of being impaired by alcohol or drugs while driving may face a 24 hour license suspension and those who have a blood alcohol level of 0.05 to under 0.08 can face an immediate suspension of longer duration, and these sanctions fall under the Traffic Safety Act.

Issues and Challenges

The recent changes to Canada’s impaired driving laws have some questioning whether it fits within Canada’s constitution.  The changes are said to be too vague, and those who use medicinal cannabis in particular may be subject to unjust sanctions if trace amounts of THC are found in roadside saliva tests.  THC can remain in small amounts within the body up to a week (or more) after consuming it, and therefore regular cannabis users may test positive, despite not using it hours or days prior to driving.

In addition, saliva tests are found to be subject to false positive results.  One law firm has discovered that poppyseed cake can cause a saliva test to show positive for opiates, consuming coca tea can show that cocaine is in one’s body, and CBD, a chemical within cannabis can show the same positive results on saliva tests even when isolated from and used without THC.

Plan of Action

The charges (and the penalties that come with them) are not something to take lightly.  If you’ve been charged with impaired driving and are now facing significant penalties, the help of an expert lawyer is the best course of action to take next.  Issues within Canada’s impaired driving laws may leave room for challenges, questions, and defenses, and Kolinsky Law is best equipped to deal with and navigate these issues in a legal setting.

The Right Custody Decision For Your Child

The Right Custody Decision For Your Child

Child custody is one of the most contentious parts of a divorce agreement.  Divorcing parents must make a shift in mindset when they move from dividing assets to negotiating child custody.  Emotions must be set aside in order to make a decision based on the child’s best interests.

Types of custody:

Divorce does not have to mean sole custody for one parent and full loss for another, or even a rigid 50/50 split.  Custody agreements come in many forms that balance the abilities and resources of each parent to build outcome that’s in the best interests of the child.

There are two types of custody: physical and legal.  A parent with physical custody takes care of the child’s day to day needs and the child usually lives with them.  A parent with legal custody has authority in making major decisions about the child’s life such as education, healthcare and religious upbringing.  Different types of custody agreements involve sharing both physical and legal custody in different ways.

● Joint custody: The child lives primarily with one parent and parents share legal custody.  There is usually a rotating schedule for physical custody.  Alberta courts usually award joint custody while seeking to maximize the role of each parent in the child’s life.

● Shared custody: The child lives roughly equally with each parent (at least 40% of the time with each) and legal custody may or may not be shared in different ways.

● Split custody: Siblings are split between parents. Parents may or may not share legal custody of all children, and may or may not rotate physical custody.

● Sole custody: One parent has full legal and physical custody.

How the courts decide custody:

In a custody case, the courts examine three factors:

● Any pre-existing arrangement between the parents
● Whether one parent works full time or not
● Which parent is the primary caregiver

The courts will also consider factors such as:

● parent-child relationships
● parenting abilities
● each parent’s mental, physical and emotional health
● parent and child schedules
● support systems in communities each of the parents live in
● sibling relationships and issues
● the child’s wishes, if they are over 12

When considering all factors involved, the courts will make a decision based on the best interests of the child.  Courts typically grant primary custody to the primary caregiver before the divorce, which is often the mother. They also consider how much time a parent can give to a child, therefore how much each parent works will be balanced against their ability to support the child financially and emotionally.

Shared custody is often preferred if one parent is away for extended periods of time, if one parent is less financially stable, or if one parent is ill, injured or otherwise less able to care for a child.

How to get full custody of my child:

Going from being a full-time parent to a shared custody arrangement can be difficult.  You may want to win sole custody, but it is important to prioritize your child’s best interests.  Consider your time, resources and relationship to your child from the objective perspective of the court.  How demanding is your work schedule?  Do you travel frequently?  Does the child need both parents actively involved in their life, or will they be more secure in a sole custody arrangement?  Are you able and willing to make the changes necessary to become a full-time single parent?

Courts rarely cut off contact between a child and a parent, unless it is in the best interests of the child.  Fathers tend to have more difficulty winning full or primary custody than mothers.  This is not because the courts discriminate against fathers, but because they favour the primary caregiver who is usually the mother.  A mother can lose custody of her child if there are extenuating circumstances that reflect on her abilities to parent, such as allegations of abuse, neglect or substance abuse.  Adultery and other marital offenses are not sufficient cause to deny custody.

A father can win a child custody case when the mother is the primary caregiver by demonstrating commitment, ability and willingness to make the life changes needed to become a full or part-time single parent.  Invest time in building a strong relationship with your child, make your home ready for a child to live in, and attend and show interest in school and extra-curricular events.  Always be respectful of your co-parent and pay any ordered child support.  Keep records of your visitations and develop a plan for how you will support and care for your child so you can demonstrate you are prepared for sole or primary custody.

How does child support work with 50/50 custody?

If you win shared custody or another variety of joint custody, you may still have to pay child support to your co-parent.  However, because each parent is assumed to be paying for the child’s ordinary expenses, the Child Support Guidelines say that this may be less than the table amount.  First, the table amount for each parent is determined based on gross annual income, and the smaller amount is subtracted from the larger amount.  The remaining amount is called the “set off.”  The parent with the larger table amount pays the set off to the parent with the lesser amount. Other factors such as whether one parent lives with a partner who shares expenses or has other dependents may also be considered.

If you want to know how to get custody of a child in Edmonton, the advice of an experienced family lawyer is invaluable.  We will help you assess your situation and understand all options to secure the best custody agreement for your family.

5 Things to Do Before Filing for Divorce

5 Things to Do Before Filing for Divorce

Making the decision whether to file for divorce is difficult and often comes after a long period of compromise, personal reflection and struggling to “make it work.”  However, if you feel ending your marriage or common law relationship is your only option, it is important not to rush into divorce proceedings as even the most amicable divorce can have serious personal and financial consequences.  Realizing your marriage may end can be extremely emotional, but there are five practical things you should consider before filing for divorce.

1.Talk to a Counsellor

Before ending a marriage, it is always worth talking to a couples counsellor or an individual therapist.  If counselling cannot resolve the issues in your relationship, it may be a sign divorce is the right option.  However, therapy should not stop with the decision to end the marriage.  A qualified counsellor can also help as you go through the steps of ending your marriage.  Divorce counselling can help you identify what went wrong, develop coping strategies and ultimately move forward post-divorce.

2. Talk to a Lawyer

If divorce seems inevitable, talk to a lawyer.  It is essential to understand your legal options and how your actions in the lead up to separation may affect the outcome of the divorce.  You will need to identify your grounds for divorce, ensure you fulfill all requirements, understand the separation and waiting period, and be aware of the implications of a contested divorce if your spouse does not agree to an uncontested divorce.  And that is all before getting into the more complex matters of splitting assets and determining child custody.

A great divorce attorney will do more than tell you to get a divorce.  They will work hard for your interests through the entire process from filing for divorce to arriving at a separation agreement.

3. Set a Goal for the Divorce

How do you want your life after marriage to look?  Determine what you want from your divorce, whether it is a clean break, an amicable co-parenting relationship or to hang on to property and assets you are entitled to.  Identify with your lawyer what your priorities are and develop a strategy to achieve your goals.

If you still are on speaking terms with your spouse, trying to find a compromise that meets each party’s most important priorities may be worthwhile.

4. Safeguard Your Assets

Take steps to safeguard your assets as soon as possible.  You may want to do this before asking your spouse for a divorce.  It is an unfortunate reality that in the emotionally charged period at the start of a breakup some people lash out by depleting joint bank accounts, lines of credit and credit cards.  Make sure you have your own individual accounts to manage your finances and where possible freeze or close any shared accounts.

Do not move out until you have spoken to a lawyer and begun divorce proceedings.  Leaving your home without good reason may result in loss of possession of the home or custody of your children.  You may also not be able to return to the home until the court divides your property.  If, however, your spouse is violent you should take all steps necessary to protect yourself and your children, including leaving the home.

5. Take Care of Your Children

If you have children, they should be your first concern in a divorce.  Try to maintain their sense of security and continuity by working with your spouse to establish pick-up and drop-off schedules, and shared responsibility for activities and appointments as soon as possible.  Prioritize making time for your children.  Avoid letting the end of your marriage affect how you interact with your spouse as a co-parent and don’t try to come between them and your children.

Divorce can be a long and emotionally draining process.  By taking these five practical steps to prepare yourself, you can ensure a smoother divorce process and a better outcome for yourself and your family.