Everything you need to know if you got a DUI impaired charge and want to plead it down to careless driving or reckless driving.

I hear this all the time: “I want to reduce my drinking and driving charge to careless driving”; or “reckless driving” – which is not actually a thing in Ontario; or another offence under the Highway Traffic Act (H.T.A.).

This question – particularly when an existing client asks me about this mid-way through his or her case – I find interesting. The reason why I find it interesting is I always discuss it at the outset of taking on a new client. Getting “a careless” is the holy grail of results for resolving an alcohol-related driving offence. Obviously the best case scenario is a complete withdrawal or a complete dismissal at trial but withdrawals are extremely rare (except in Quebec where they generally don’t plead down to lesser offences like careless driving or reckless driving) and a dismissal at trial imputes/imputes a certain degree of risk – the matter needs to proceed before a judge who might find you guilty or not guilty; that approach also costs more money for legal fees. So getting a no/low-risk outcome which does not result in a criminal record and often lets a person keep driving, is clearly a good deal.

Why Would You Want Careless Driving

I often get clients in traffic court who receive a careless driving charge. Often, these charges are given out for rear-end collisions or other fender-bender type accidents. When those clients see me, a carelessdriving charge is not so great. It has a relatively high fine for traffic tickets; it comes with 6 demerit points upon conviction; it can sometimes (though not normally) result in a licence suspension. So when those clients come and see me, the goal is to not get a careless driving conviction.

But an alcohol-related driving offence like “over 80” / “80 and over” / “80over”, or impaired driving, is a serious criminal offence. If convicted, you are

  • Guaranteed to lose your licence for a year (without the possibility of early reinstatement for 3-6 months)
  • Guaranteed to get a fine of $1,300.00 or more – often these fines can go up to 3000-4000$ depending on breath readings etc.
  • Guaranteed to get a criminal conviction (which is what is commonly known as a criminal record) – you cannot receive a conditional discharge
  • Guaranteed to have additional consequences like insurance premium increases equal to or greater (often greater) than a careless driving charge
  • Other issues such as the cost for an interlock machine; attendance for a “Back on Track” educational course; possible mandatory jail for future offences etc.

Careless driving on the other hand:

  • Can have no fine and typically only have a fine of $600 to $1000
  • Has no mandatory loss of driving privileges – although a probation order (as differentiated from a prohibition order) is often crafted to limit driving in some way i.e. with zero alcohol, or only to and from work or school for a period of time etc.
  • Has no criminal record
  • Has insurance consequences equal to or lower (often lower) a DUI charge
  • Has fewer additional consequences

What are the Mechanics of Getting a Careless Driving Charge?

As I usually explain to my clients, going to trial involves litigation. Getting a careless driving charge requires negotiation.

As a lawyer for someone, I employ different forms of advocacy at different times. Sometimes my approach is to vigorously cross-examine a police officer (asking questions about why certain facts he claims are not true, are embellished, or why they omit other more important facts); sometimes my approach to advocacy does not involve arguing about the facts, but rather involve arguing about the law – the prosecutor and defence may agree that the facts are ABC and XYZ, but we will argue different things to the judge – I will say that ABC/XYZ should result in a certain outcome when looking at the relevant legal rules, when the prosecutor will argue for a different result; that different result is driven by a different interpretation of what he/she says the relevant legal rules mean. In both of these cases my role as an advocate involves litigating in front of a judge. A judge hears both sides and makes a decision.

But my role as a lawyer can involve negotiation – speaking to the prosecutor in advance to try and reach agreement.

In the case of carelsss driving, a judge cannot impose it. I can make the best arguments in the world why my client deserves a break; I can make the best arguments in the world as to why the prosecution’s case may be faulty; I can make whatever arguments I want; even if the judge wants to give my client a break, the judge has no authority to impose a carless driving charge because that involves changing the charge to something else and a judge is not empowered to do that. A judge rules on the case before him/her. The prosecutor on the other hand can substitute different charges in certain circumstances and so the mechanics of getting a carelss driving charge is that I need to convince the prosecutor to agree to this outcome.

When Does a Prosecutor Agree to Change The Charge?

Broadly speaking the prosecutor (aka “the Crown”) has two rules guiding whether or not they pursue a case:

  • Is there a public interest?
  • Is there a reasonable prospect of conviction (RPC)?

In the abstract, there is a “public interest” in prosecuting every alleged breach of the law. However the public has an expectation that for certain types of offences in certain types of circumstances that it makes more sense to discontinue the prosecution. For instance, if someone shoplifts a candy bar, if it’s their first time, if they are willing to engage in a program involving education or community service, and sometimes if other criteria are met, the public interest is better served in withdrawing the charge as opposed to using court resources to prosecute. In the case of drinking and driving however, the prosecution’s normal policy is that there is virtually always a public interest in prosecuting these kinds of cases. There may be rare exceptions; for example a permanent resident who’s lived in Canada for 20 years who is at risk of being deported to a dangerous country, where the accused person has an impressive contribution to the community and where the allegation is that they were sleeping in their car with a blood-alcohol concentration at only slightly above the legal limit. In those rare situations it might be possible to convince a prosecutor not to proceed with the DUI charge because the public interest is better served with some alternate way of dealing with the charges. But most cases don’t fit into those “exceptional circumstances” – being a single mother living in the country where there is no public transportation; having a drinking problem which you seriously address through aggressive treatment and counselling; having low breath readings and driving a very short distance are all examples of circumstances which, on their own (and even in conjunction with other good character evidence) is typically not enough to discontinue the prosecution.

Reasonable prospect of conviction means that the prosecution has a reasonably viable case. They need to have more than a “prima facie case” – the case must be stronger than theoretically being possible to convict – it must be stronger than meeting the bare minimum standard to proceed in a trial, but it’s not much higher than that. Prosecutors are entitled to fight weak cases. Particularly when the weakness involves the credibility or quality (reliability) of the potential testimony of witnesses, the prosecutor’s general view (unless it is something substantial) is that these are decisions for the judge to make. But if, in the view of the prosecutor there is no realistic chance of conviction, they must withdraw the charge.

A careless driving charge can be proposed in situations where there is RPC and where there is a public interest but it’s a close call. Enter, the “COVID deal”.

As mentioned above, the normal position of the prosecutor is that there is virtually always a public interest in prosecuting impaired driving cases, even when there are a host of mitigating factors relating to the circumstances and the offender. However since COVID has arisen, the courts are backlogged. The prosecutor has a duty to have courts try people in a reasonable time. There is also a slight bit more understanding of bad decision making. Based on these factors, the Crown in Ontario is now considering dealing with some cases by way of a carless driving charge (often with strict conditions including the installation of an ignition-interlock device (alcohol-interlock device).

Despite this, there are a number of cases which are disqualified from such a deal. Only cases which meet these criteria are eligible for their new policy position:

In reviewing alcohol impaired driving cases, Prosecutors may consider the impact of the COVID-19 pandemic as an exceptional circumstance justifying the withdrawal of the Criminal Code driving offence in exchange for a guilty plea to the Highway Traffic Act (HTA) offence of careless driving.

Where the exceptional circumstance justifying a careless driving resolution is the impact of the COVID-19 pandemic, an accused is ineligible for the resolution if any of the following deemed aggravating factors under the Criminal Code and other factors are present:

  • bodily harm or death resulted
  • the accused’s blood alcohol concentration is equal to or more than 120 mg within two hours after operating a vehicle
  • the accused has a prior criminal or HTA record for similar offences
  • the accused is prohibited or suspended from driving under a federal or provincial act
  • a collision or significant bad driving was reported
  • the accused has a prior HTA ‘warn’ or ‘ADLS’ licence suspension
  • the accused was being paid for driving at the time
  • a person under the age of 16 years was a passenger in the vehicle
  • the accused refused to provide a breath or blood sample
  • the accused was driving a large motor vehicle
  • the impairment was caused by drugs or a combination of drugs and alcohol.

A decision to accept a careless driving resolution must be approved by the Crown Attorney or designate. The protection of the public is the primary concern at every stage of the prosecution of impaired driving offences.

Where a careless driving resolution is approved, the Prosecutor should consider seeking a $1000 fine and a Provincial Offences Act (POA) probation order with a condition requiring that an ignition interlock device be installed in the offender’s vehicle or other driving restrictions. The Prosecutor should also consider as a term of a probation order a condition requiring the accused to complete the Back on Track Program remedial measures program.

Although those criteria, if not met, generally foreclose a person from getting such a COVID resolution, there are cases which are close which further negotiation with the prosecutor can open the door to such an outcome. That is where we can often help you out.

In addition to careless driving, we have also persuaded the prosecutor to agree to:

  • Minor traffic offences (more minor than careless driving) such as improper lane change;
  • Mischief under the Criminal Code (with a conditional discharge – no criminal conviction)
  • (for refusal of breath demand cases) Obstruct a Police Officer under the Criminal Code (with a conditional discharge – no criminal conviction)
  • Dangerous Driving under the Criminal Code (with a conditional discharge – no criminal conviction)

If you are hoping to change your charge to careless driving or something else, please give us a call for a free consultation.