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Drinking and Driving: The Multiple Offender And Increased Penalties

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In Canada, the penalties for drinking and driving grow progressively stiffer with each subsequent conviction.  We have mandatory minimum sentences, which means that judges cannot sentence a person found guilty of a drinking and driving offence below the mandatory prescribed minimum punishment for drinking and driving.  As of the writing of this article, the mandatory minimum fine for a first offence is $1000.  For a second conviction the mandatory minimum sentence jumps to thirty days in jail.  For each subsequent offence the mandatory minimum sentence increases to one hundred and twenty days in jail.  The mandatory minimum sentences for drinking and driving for second and subsequent offences are considered increased penalties.  That is, they are considered increased penalties from the mandatory minimum sentence of a $1000-fine for a first conviction for a drinking and driving offence.  Under the Criminal Code of Canada, in order for an increased penalty to apply due to a previous conviction, the Crown must satisfy the Court that the accused person was notified that a greater punishment would be sought by reason of the previous conviction.  This provision is contained within section 727(1) of the Criminal Code of Canada.  Typically, the Crown will file with the Court a document entitled ‘Notice of Increased Penalty’, which was served on the accused person at the time of his arrest.  Once this notice is filed upon conviction, the judge must sentence the accused person to at least the mandatory minimum jail sentence enumerated in the Criminal Code.  However, if this Notice is not filed, the judge is not bound to apply the automatic increased sentence.  In most instances, the Crown will not forget to file this document.  However, in some circumstances, the Crown will exercise its discretion not to file the Notice, allowing an accused person to escape a jail sentence.  This typically happens during the plea bargaining process where the accused person has a previous conviction for a drinking and driving offence that is more than five years old.  Often times, the Crown will offer to not file the Notice in exchange for a guilty plea and, instead, seek a fine as punishment.  This is a discretionary measure so it cannot be stated that this occurs in every situation that falls into this scenario.  The flip side of this is that the Crown will state that if, however, the accused person chooses to proceed to trial and loses, then it will file the Notice and seek the minimum jail sentence.  For a second or subsequent offender, this is often an offer that he can’t refuse.

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