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Curative Discharges in Impaired Driving Cases

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.

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