Impaired driving, commonly referred to by the status quo as “drunk driving” or a “DUI”, is the operation of a motor vehicle while compromised by the effects of alcohol and/or drugs. Impaired driving charges are very serious; the consequences of a conviction are extensive and go beyond a potential fine and/or sentence. A conviction can impact your ability to work, travel, operate a vehicle and more.
In Canada, there are three drinking and driving offences:
- Impaired driving
- Operating or having care and control of a vehicle over while having a blood alcohol concentration (“BAC”) over 80
- Refusing to provide a breath sample
TYPES OF IMPAIRED DRIVING OFFENCES
Section 253 of the Criminal Code prohibits the operation or care and control of a motor vehicle by anyone impaired by the effects of alcohol and/or drugs. The offence of impaired driving does not require a specific degree of intoxication. Any level of impairment can support a charge of impaired driving. Impaired driving offences are not limited to the consumption of alcohol but also include the use of any substance that has the ability to impact your ability to operate a vehicle. Drugs include illegal drugs, prescription drugs and over-the-counter medication. Further, an impaired driving charge does not require the movement of a vehicle, sitting behind a wheel is seen as enough to attract a charge and conviction for impaired driving.
As with most offences under the Criminal Code, the Crown prosecutor bears the burden of establishing the offence beyond a reasonable doubt. Accordingly, in cases of impaired driving, the Crown must prove, beyond a reasonable doubt, that the accused’s ability to operate a vehicle was impaired by alcohol and/or drugs at the time in question. This is typically determined by driving behaviour and other signs of impairment witnessed by an individual (i.e. police officer). When the charge involves drugs rather than alcohol, the matter becomes more complicated as a Drug Recognition Expert is often required.
Impaired driving and over 80 mg are related charges, but distinct offences under the Criminal Code. In Canada, it is a criminal offence to drive a motor vehicle with more than 80 milligrams of alcohol per 100 millilitres of blood in your system. This means that a fully licenced driver may have alcohol in their system, but the amount should not exceed 80 milligrams. It is important to note that in Ontario, you will face serious consequences if your BAC is between 0.05 and 0.08. This is commonly referred to as the “warn range”, and generally charged as impaired driving.
Drivers aged 21 or under and novice drivers of any age (with G1, G2, M1, or M2 licenses) must not have any alcohol in their blood when behind the wheel. This is commonly referred to as the “zero BAC” or “zero tolerance” rule. Following the legalization of cannabis in Canada, as of July 1, 2018, young and novice drivers are also prohibited from having any presence of cannabis in their system as well as other drugs that can be detected by an oral fluid screening device. That means that Ontario has a zero tolerance approach to both alcohol and drugs for all young and novice drivers. Those who use cannabis for medical purposes are exempt from this rule, however, if you may still face criminal charges if police determine that your ability to drive has been impaired by the medical cannabis or other drug.
Again, the Crown prosecutor bears the burden of proving this offence beyond a reasonable doubt. Specifically, the Crown prosecutor must prove to the court that the accused was operating a vehicle or was in the care and control of a vehicle while having a blood alcohol concentration of 80 or more at the relevant time. Proof of an over 80 offence requires a procedure of taking a breath or blood sample and then extrapolating the estimated BAC at the time of the offence.
REFUSING TO PROVIDE BREATH SAMPLE
As of December 18, 2018, police officers can demand any lawfully-stopped driver to provide a preliminary breath sample to test for alcohol without reasonable suspicion that the driver has alcohol in their body.
Refusing to provide a breath sample, when requested by a police officer, is a criminal offence under section 254(5) of the Criminal Code. If you refuse a breath test, you will be charged with refusing to comply with a police demand. If requested outside of a police station, you do not have the right to talk to a lawyer and you do not have the right to refuse. However, if the sample is requested at a police station you have the right to consult a lawyer before doing the test.
If charged with refusing to provide a breath sample, a court will decide whether you had a reasonable excuse for refusing. It is typically very difficult to show a reasonable excuse.
TESTS FOR IMPAIRED DRIVING OFFENCES
For impaired driving related offences, police officers will typically request a breath sample. As of December 18, 2018, police officers can demand that any lawfully-stopped driver provide a preliminary breath sample to test for alcohol without reasonable suspicion that the driver has alcohol in their body.
A roadside breath test will give 3 possible results:
To get a pass, you must have less than 50 mg of alcohol in 100 ml of your blood. If you get a pass, you are usually free to go. If you get warn or fail you will likely be charged with impaired driving or driving over 80. Refusing to give a breath sample when one is requires is a criminal offence in Canada.
If for whatever reason you are not able to provide a breath sample, the police may demand a blood sample. The police typically request this in unique circumstances where for example you are involved in an accident and are unconscious or if you are unable to blow the required amount due to a respiratory illness. The individual accused must consent to the taking of a blood sample, they may refuse to comply but refusing to comply is an offence under the Criminal Code.
Blood samples can only be taken by and under the direction of a qualified medical practitioner or technician. The individual taking the blood sample must be satisfied that the procedure (i.e. taking of blood) would not endanger the life or health of the individual.
STANDARDIZED FIELD SOBRIETY TEST
An officer may ask you to perform a “Standardized Field Sobriety Test” upon stopping you or within 3 hours of operating a vehicle. It simple terms it is a physical coordination exercise to check whether your ability to operate a vehicle has been impaired by the effects of alcohol.
You do not have the right to talk to a lawyer before doing a Standardized Field Sobriety Test. You do not have the right to refuse a Standardized Field Sobriety Test. Refusing to do is a criminal offence.
DEFENDING IMPAIRED DRIVING OFFENCES
Where the Crown prosecutor is able to establish the offence of homicide beyond a reasonable doubt, the accused may bring evidence to lower the degree of culpability or disprove the offence.
When charged with a drinking and driving offence, you have options. There are a multitude of defences that may be applicable to your matter. A qualified lawyer with experience handling impaired driving related offences can challenge the accuracy of the equipment used to obtain samples, the circumstances surrounding the retrieval of a breath or blood sample, argue for a reasonable excuse for refusal or even the lack of a reasonable opportunity to provide a sample. In some cases, arguments relating to your constitutional rights may be warranted.
The law surrounding impaired driving related offences is complicated and broad. There are many factors to consider when defending such offences. As such, it is important to obtain legal advice or hire a seasoned lawyer to assist you in handling these types of offences. This is especially important given the serious implications a conviction of this type could have on your life.
The lawyers at Sack (Q.C.) and Bogle Law have years of experience in defending impaired driving related offences. Contact our office now if you or someone you know has been charged with an impaired driving offence.
Once charged with an impaired driving related offence, the vehicle will be immediately impounded for a week and your licence will be suspended between 3 to 90 days depending on the level of alcohol and/or drugs in your system.
Impaired driving charges carry mandatory minimum penalties upon conviction, and repeat offenders face progressively harsher penalties. In Ontario, a first conviction on an impaired driving charge or driving over 80 is a one year licence suspension and a minimum fine of $1000, and the possibility of jail. A second or subsequent conviction is much more serious and the consequences are much harsher. A second or subsequent conviction may carry a minimum jail sentence of 30 to 120 days.
The potential penalties are even greater when a drinking and driving offence leads to a person being injured or killed. In these cases, you could face a maximum possible penalty of life imprisonment for impaired driving causing death or 10 years for impaired driving causing bodily harm.
The following is a chart prepared by the Federal Government that summarizes the potential penalties associated with impaired driving:
|Charge||1st Offence||2nd Offence||3rd Offence|
|- Alcohol-impaired driving. |
- Having a Blood Alcohol Concentration (BAC) at or over 80mg per 100ml of blood within 2 hours of driving.
|Mandatory Minimum: $1000 fine.|
Maximum: 10 years imprisonment.
|Mandatory Minimum: 30 days imprisonment.|
Maximum: 10 years imprisonment.
|Mandatory Minimum: 120 days imprisonment.
Maximum: 10 years imprisonment.
|- Drug-impaired driving.
- Having 5ng or more of THC per ml of blood within 2 hours of driving.
- Any detectable level of LSD, psilocybin, psilocin, ketamine, PCP, cocaine, methamphetamine, 6-mam within 2 hours of driving.
- Having 5mg or more of GHB per 1 litre of blood within 2 hours of driving.
- Having a BAC of 50mg per 100ml of blood + 2.5ng or more of THC per 1ml of blood within 2 hours of driving.
|Refusal to comply with demand for sample||Minimum: $2000 fine.|
|Drug-impaired driving - Summary conviction|
- Having over 2ng but less than 5ng of THC per ml of blood within 2 hours of driving.
|Maximum: $1000 fine
|Impaired driving causing bodily harm||- Summary Conviction: Maximum 2 years imprisonment less a day.
- Indictment: Maximum 14 years imprisonment.
|Impaired driving causing death||- Summary Conviction: Maximum 2 years imprisonment less a day.
- Indictment: Maximum life imprisonment.
|First offence + BAC of 80 - 119 mg||Mandatory minimum $1000 fine|
|First offence + BAC of 120 - 159 mg||Mandatory minimum $1500 fine|
|First offence + BAC of 160 mg or more||Mandatory minimum $2000 fine|
If you or someone you know has been charged with an impaired driving offence, contact Sack (Q.C.) and Bogle Law today for assistance.