ARRESTED - GETTING OUT OF JAIL
ARRESTED - GETTING OUT OF JAIL
The most terrifying experience for anyone is getting arrested by the police. At the time of your arrest you are detained and are no longer free to leave and go about your business. The police take possession of your personal belongings, handcuff you and place you in the back of the police car for transport to the police station. After being processed at the police station, some people get released upon signing a “Promise to Appear” in court and some don’t. This article outlines the various forms of release from custody, who gets released and under what circumstances.
Promise to Appear in Court
The simplest form of release from custody is a “Promise to Appear” in court. This is sometimes referred to as an “Appearance Notice”. This is a form which the police complete and the Accused person signs. Upon signing, the Accused is released from custody on his promise to appear in court on a later date and to attend at the police station for fingerprinting and to have his photograph taken pursuant to the Identification of Criminals Act. Accused persons who normally reside in the area of the province under the jurisdiction of the court who are charged with relatively minor criminal and drug offences are usually released on a Promise to Appear. (An accused person who is not arrested can be issued a “summons” to appear in court.)
Undertaking with Conditions
The police may also ask an Accused to enter into an “Undertaking with Conditions” to secure his release from custody. This form of release is frequently used in domestic violence and sexual assault cases where the Accused will be asked to undertake to have no contact with the complainant or alleged victim. There can be other conditions such as abstaining from alcohol or drugs or residing at a particular address. The police have the burden of justifying these conditions should the Accused request a variation before a judge of the Provincial Court.
If the police decide not to release an Accused on a Promise to Appear, Recognizance or Undertaking, they must take him to court for a bail review within twenty-four hours of his arrest. At a bail hearing a judge will decide if the Accused will be released and the conditions of release. If a judge determines that an Accused can be released it will be in the form of a Recognizance entered into before a judge or justice. The Recognizance may be with or without a surety. A “Surety” is an individual who accepts responsibility for the Accused and promises to pay an amount of money to the court should the Accused fail to attend at court or fail to abide by his release conditions. Not everyone can act as a surety; for example, the court would not accept as a surety an individual without a fixed address or an individual who has a criminal record.
Who May be Refused Bail
If an Accused has a history of failing to show up at court or has a history of committing the same offence, he may be denied bail. Similarly, if the Accused was already out on bail and breached his release conditions, he may be denied bail. In some cases if an Accused was already on release conditions for an indictable offence, he may have to show cause as to why he should be released. As a general rule, if an Accused has already been released on conditions and is arrested again, the release conditions will be more onerous and may include a curfew and house arrest. If an Accused habitually breaches his release conditions, the court may decline to release him under any conditions and he will have to remain in custody until his trial. In some cases, after an Accused has been arrested, the Crown Attorney may request that the Court not proceed with a bail hearing for three days to permit the police to investigate further.
An Accused who has been arrested and not been released by the police pursuant to a “Promise to Appear” should always contact a lawyer to determine how to obtain his release from custody. An experienced criminal defence lawyer can navigate the often complex rules which will determine if you are released from custody and under what conditions. A failure to get it right the first time may result in a costly appeal of the bail decision.
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Most Canadians are familiar with the police use of a roadside screening device to determine if alcohol is present in a driver stopped either at a police road checkpoint or on suspicion of impaired driving. The Criminal Code is quite clear that a fail on the roadside screening device provides the grounds for a police officer to make a demand that a driver provide a breath sample for the breathalyzer at the police station. A reading of over .08 on the breathalyzer at the police station will cause the police to lay the charge of failing the breathalyzer pursuant to section 253(1)(b) of the Criminal Code. The breathalyzer certificate, if found to be admissible by the court, will be proof of impairment for purposes of section 253(1)(b) of the Criminal Code.
When it comes to impairment by a drug, there is no device similar to a screening device or breathalyzer which the police can use to measure impairment by alcohol. When it comes to possible impairment by a drug, the Criminal Code provides a regime outlined at section 254 whereby a police officer who is designated a “drug evaluation expert” can give evidence of tests which the officer conducted to determine whether, in the officer’s opinion, an individual’s ability to drive is impaired by a drug. The regulations made pursuant to section 254(1) of the Criminal Code establish the qualifications of a drug evaluation officer and describes the tests that they perform in making a determination as to whether, in the officer’s opinion, a driver’s ability to drive is impaired by a drug. These tests, which are outlined in the regulations, include measurements of pulse and heart rates. There are also a series of eye examinations and physical divided attention tests. The drug evaluation officer will complete a “Drug Influence Evaluation” form and later prepare a written summary of the tests and their results. The drug evaluation officer will form an opinion as to whether or not the person’s ability to operate a motor vehicle was impaired by a drug and that would serve as the basis for either a demand for a blood sample or a urine sample which would then be sent to a forensic laboratory for analysis.
Drug evaluation expert “DRE” cases tend to be complex because legal issues arise as to the qualification of the drug evaluation expert to give opinion evidence in court. It is usually necessary to have a forensic toxicologist testify to give evidence if drugs were found in the urine or blood sample and their likely effect on a person’s ability to drive.
In Nova Scotia, most courts have found that a police officer who is qualified as a drug evaluation expert according to the regulations made pursuant to section 254(1) of the Criminal Code must be qualified to give expert evidence in court. Even if an officer is qualified to give expert evidence, there are always arguments which experienced defence counsel can make about the weight a trial judge should give to such evidence. Most reported drug evaluation cases in Nova Scotia have typically taken up to two days of court time and frequently involve applications based on the Charter rights of the accused given that part of the drug evaluation expert’s examination involves asking the accused to provide answers to various questions which can amount to self-incrimination.
Any driver charged with impairment which involved an examination by a drug evaluation expert should consult with an experienced criminal defence lawyer before agreeing to answer any questions for the police officer or participating in the test procedure. It is a criminal offence to refuse to participate in the series of tests mandated by the regulations pursuant to section 254(1) of the Criminal Code. However, an accused driver may not have to answer any of the questions posed by the police officer because those questions would tend to violate an accused’s Charter protected right against self-incrimination.
If you are charged with an offence of being impaired by a drug which involves a drug evaluation expert, you should consult with a lawyer who has experience in these complicated legal cases. If you require legal advice in this area please do not hesitate to call Tom Singleton at (902) 492-7000.
The Criminal Code at section 255(5) permits a court to grant a “curative discharge” instead of registering a conviction for an offence under section 253 of the Criminal Code. The offences under section 253 of the Criminal Code are impaired driving or failing the breathalyzer. The effect of a “curative discharge” is that the court will not impose the minimum sentence prescribed by the Criminal Code and will usually place the offender on probation subject to conditions that he participate in an alcohol or drug treatment program.
Given that there are minimum penalties for a conviction under section 253 of the Criminal Code, an offender has to meet certain criteria to be eligible for a “curative discharge”. A minimum sentence for a conviction under section 253 of the Criminal Code is a fine of $1,000.00 for a first offence; that increases to a minimum of thirty days imprisonment for a second conviction and to a minimum of one hundred and twenty days imprisonment for a third conviction. The other consequence of a conviction under section 253 of the Criminal Code is that the offender will have a criminal record which may affect travel and employment opportunities. The only way to avoid minimum penalties prescribed in the Criminal Code for convictions of impaired driving or failing the breathalyzer is to convince a court that the offender should be granted a “curative discharge”.
In order for a court to grant a “curative discharge” it must be convinced that the offender is a person in need of curative treatment in relation to his consumption of alcohol or drugs. Most people who are charged with impaired driving or failing the breathalyzer offences will not meet this criteria because they do not have a history of an alcohol or drug problem. Most persons charged with impaired driving or failing the breathalyzer are people who made a mistake and drove after having consumed alcohol. The mere fact of being charged with impaired driving or failing the breathalyzer does not mean a person has an alcohol or drug dependancy to a point where they would be considered a person in need of curative treatment. An offender would have to convince a court that he is a person in need of curative treatment by advancing evidence of a history of alcohol or drug dependancy; such evidence can be given by testimony from a doctor or other medical professional. The fact that someone has previously been treated for an alcohol or drug issue may be evidence that the person is someone in need of curative treatment.
As a practical matter, when an offender is making an application for a “curative discharge”, the court will normally require evidence that he has taken steps to deal with an alcohol or drug consumption problem such as having participated in a detox treatment program or having followed counselling in regard to such a dependancy. The court will usually want to hear testimony from the professionals who supervised the alcohol or drug treatment program and from the counsellor who provided follow-up counselling. At a “curative discharge” application, the court will also want to hear the offender testify about what he has done to try to deal with an alcohol or drug abuse problem. Other witnesses at a “curative discharge” hearing may include family members and friends of the offender as well as someone from a group such as Alcoholics Anonymous. At the end of the day, the court has to be convinced that the offender is someone in need of curative treatment, and, as a practical matter, has taken steps to obtain such treatment.
The next hurdle which an offender must pass to obtain a “curative discharge” is to convince the court that granting the discharge is not contrary to the public interest. The Crown Attorney will usually argue that granting a “curative discharge” will not meet the public interest test because of the carnage caused by impaired drivers on our roads and the need for deterrence when it comes to impaired driving offences. A skilled defence lawyer will argue that the public interest is served by a person with an alcohol or drug addiction problem following treatment and becoming a productive member of society who is unlikely to ever again place the public at risk by getting behind the wheel of a motor vehicle after he has been drinking.
If the court decides to grant a “curative discharge” the offender will be placed on a period of probation subject to conditions that he follow counselling and treatment as directed by his probation officer to deal with an alcohol or drug problem. There will also be a condition that the offender not possess or consume alcohol or illegal drugs. If the offender completes the period of probation successfully, he will be deemed never to have been convicted of the criminal offence of impaired driving or failing the breathalyzer and not have a criminal record in regard to that offence.
It should be noted that a “curative discharge” is not a possible sentence option if an offender has been convicted of the charge of refusing to provide a breath sample for a screening device or for the breathalyzer despite the fact that the same minimum sentences apply for that conviction and in all other respects it is treated the same as a conviction for impaired driving or failing the breathalyzer. Section 255(5) of the Criminal Code limits the option of a “curative discharge” to offences under section 253 of the Criminal Code. A skilled defence lawyer will usually ensure that a client who is charged with refusal and also charged with impaired driving will plead “guilty” to the impaired driving offence to ensure that he is eligible to apply for a “curative discharge”.
Another point to keep in mind in regard to “curative discharges” is that a person charged for the first time with an impaired driving offence may apply for a “curative discharge” if they meet the criteria. The same applies to a person who has multiple prior convictions for impaired driving related offences. In fact, it is easier for a person with multiple impaired driving related convictions to convince a court that he is a person in need of curative treatment than it is for most first time impaired driving offenders.
An application for a “curative discharge” is a complicated matter given the two-pronged test which must be met before the court will grant such a remedy. Given the kind and nature of evidence which must be advanced in court to secure a “curative discharge” the services of an experienced lawyer who specializes in impaired driving cases will usually be required.
One of the most immediate consequences of being charged with an impaired driving related offence (drunk driving, DUI or refusal charges) is that your license will be suspended in Nova Scotia for period of ninety days under the Motor Vehicle Act. This suspension occurs because of the mere fact of being charged with an impaired driving related offence. While this kind of a driving license suspension, without the benefit of a trial or hearing is draconian, the situation gets worse when you attempt to get your license back after the ninety day suspension is over.
Numerous persons who have had their license suspended because of an impaired driving or related criminal charge have gone to Service Nova Scotia after their ninety day suspension is up thinking they would get their license back, only to learn that they cannot get their license back unless they have participated in a designated Alcohol Rehabilitation Program which must be completed through Addiction Services at Capital Health in Halifax. When you call the number for the “Driving While Impaired or Interlock Program” at Capital Health in Halifax (902-424-8866, option # 3) you will get an answering machine prompting you to leave your name and telephone number. Recently people who have been applying to participate in the Alcohol Rehabilitation Program have been told that they could only get into the program three or four months down the road. The net effect is that the ninety day license suspension becomes a suspension of six months or longer because of the waiting list for the Alcohol Rehabilitation Program. This is a very severe additional punishment for someone who has not yet been convicted of any offence and is clearly not the intention of section 279A of the Motor Vehicle Act.
At Singleton & Associates when a client is facing an impaired driving related criminal offence, we advise that they should immediately apply to participate in the Alcohol Rehabilitation Program given the wait list at Addiction Services. In other words, you make the application at the beginning of the ninety day license suspension.
The same problem awaits anyone who has been convicted of impaired driving or a related criminal offence and receives a one year driving suspension under the Criminal Code when they go to Service Nova Scotia to attempt to get their license back. If they have not already completed the Alcohol Rehabilitation Program through Addiction Services at Capital Health they will be told that they have to apply to the program and complete it before they can get their license back. They have to participate in the same program and the wait list is three months or longer, which results in the driving suspension of one year imposed by the Court becoming a driving suspension of fifteen months or longer. Again, our advice is to make your application to participate in the Alcohol Rehabilitation Program at the beginning of your suspension.
One would think, in the interest of fairness, that the Alcohol Rehabilitation Program required by the Registry of Motor Vehicles would be readily available especially when every applicant who does the course is paying a fee of hundred of dollars to fund the program. Setting up such a rehabilitation program in a manner which has the effect of extending the license suspension is unjust and should not be tolerated in a democracy which cherishes the rule of law. Yet it is unlikely that anything will be done to correct this injustice, given the existence of well financed lobby groups such as MADD (Mothers Against Drunk Driving).