Drinking and Driving and Impaired
Driving
Being charged with “drinking and
driving” is a criminal matter in
Canada governed by the Criminal
Code.
This article
is a brief and general
overview providing legal
Information on Drinking and
Driving, Impaired Driving, Over 80
and Refuse Breath Sample charges in
Toronto, Ontario. Those
looking for advice on
a drinking and driving charge should
consult a
criminal lawyer.
What is drinking and driving?
Driving while impaired by alcohol,
driving with more than 80 milligrams
of alcohol in 100 millilitres of
blood (Over 80) or refusing to
provide a breath sample are all
examples of drinking and driving
offences in Canada.
What are the penalties for drinking
and driving?
The Criminal Code provides a
minimum fine of $600 for a first
offence in addition to a criminal
conviction registered on your
permanent record. Subsequent drunk driving
convictions carry minimum jail
penalties beginning with 14 days in
jail for a second conviction. A
drinking and driving conviction will
also require a mandatory driving
prohibition preventing a prohibited
driver from driving anywhere in for
a minimum of one year, or three
months in a province such as Quebec
or Alberta that has an concurrent
ignition interlock program. Ontario
does not currently participate in an
ignition interlock program.
In
addition to the penalties mandated
under the Criminal Code, a
conviction for drunk driving will
also drastically affect your motor
vehicle insurance coverage and
premiums. In Ontario, you will
probably be required to insure with
Facility Association, which insures
high-risk drivers and exacts high
premiums. For each of the three
years following your conviction,
Facility Association will levy a 100
per cent surcharge atop your
premiums. It will impose more
surcharges, up to a maximum of 250
per cent, for other convictions
relating to the same incident, such
as careless driving or failing to
remain at the scene of an accident.
Each insurance company has its own
conviction surcharge schedule.
What is the difference between
impaired driving, over 80, and
refusal to provide a breath sample?
Impaired Driving
In
order to establish an impaired
driving charge, the Crown must prove
that the driver’s ability was
impaired by alcohol or a
drug. Evidence of impairment may be
proven by a combination of driving
observations and physical
observations of the driver. Evidence
of erratic driving, weaving,
crossing of the centre line or
evidence of a motor vehicle
collision may all be used to support
an inference of impaired driving.
Personal observations tending to
reveal signs of impairment may also
be relied upon, including: an odour
of alcoholic beverage emanating from
the driver’s breath, bloodshot eyes,
dilated pupils, unsteadiness or
slurred speech.
Over 80
Unlike impaired driving, the offence
of “over 80” does not require proof
of impairment of any kind, only
proof that the driver had a
concentration of alcohol in their
blood exceeding 80 milligrams of
alcohol in one hundred millilitres
of blood. This alcohol concentration
reading is usually determined from
an analysis of breath samples
obtained by police and processed
with a breathalyser machine capable
of providing such results. These
results can also be obtained by
testing a sample of the driver's
blood.
Refuse to Blow or Refuse to Provide
a Breath Sample
The offence of refusing to provide a
breath sample, either for the
roadside screening device or an
approved breathalyser machine at the
police station is another drinking
and driving offence. The
consequences of a conviction on only
this charge are essentially the same
as those for a conviction on
impaired driving or over 80, namely,
a criminal conviction, driving
prohibition, license suspension and
the same insurance consequences.
A person convicted of refusing to
provide a breath sample may also be
convicted of driving while impaired.
However, the rules of double
jeopardy prevent convictions for
both over 80 and impaired driving
arising out of the same incident.
Stopping a Motorist - From traffic
stop to conviction:
In Canada, provincial driving
legislation such as the Highway
Traffic Act in Ontario, enables
police to stop and investigate
drivers for drinking and driving
offences. Police may also set up
stop checkpoints to pull vehicles
over for the purpose of checking for
signs of drunk driving, known as
R.I.D.E. (Reduce Impaired Driving
Everywhere).
This power to investigate a driver
of a motor vehicle regarding their
sobriety does not permit an
officer to demand a roadside breath
test. In order to require a person
to submit to a roadside breath test,
the person under investigation must
be operating or “in care or control”
of a motor vehicle at the time of
investigation AND the
officer must reasonably suspect the
person under investigation has
alcohol in his or her system.
The officer may have a reasonable
suspicion the person has alcohol in
their body if they admit to have
recently consumed alcohol or if the
person under investigation
demonstrates visible signs of
impairment. Once the officer
reasonably suspects a person to have
alcohol in their system, they may
require a driver to provide a sample
of their breath for testing. In some
instances, the failure of police to
establish they had grounds to
suspect alcohol had been recently
consumed may amount to a defence to
an over 80 or refuse breath sample
charge because the unlawful breath
demand would invalidate the
subsequent test results.
The roadside screening test results
will either return a “pass”, “warn”
or “fail” result. The machine is
usually calibrated to fail when a
person has over 100 milligrams of
alcohol in 100 millilitres of blood.
Failing the roadside test will not
in and of itself support a
conviction for over 80. Evidence of
a failed reading is not proof of the
level of alcohol in the person’s
blood. It is only used to justify a
further demand for a sample of
breath into an “approved instrument”
capable of providing a proper
reading of the person’s blood
alcohol level.
A “fail” result on the roadside
breath test will permit an officer
to arrest the driver for the offence
of over 80. An arrest for over 80
may also be accompanied by an arrest
for impaired driving if the driver
exhibits clear signs of impairment
by the manner they were driving the
vehicle or physical observations of
the driver under investigation.
Can I speak to a lawyer before I
give a breath sample?
Upon
arrest or detention, an individual
is entitled to consult with a lawyer
for the purpose of obtaining advice
about their situation. Everyone on
arrest must also be advised of the
availability of a 24-hour toll-free
legal aid number for those who do
not have a lawyer to call but wish
to obtain legal advice. If the
police fail to advise a person under
arrest of these constitutional
rights, or fail to provide the
person under arrest an opportunity
to contact counsel, the failure to
do so may result in the exclusion of
the defendant’s alcohol level
readings obtained at the police
station. This exclusion of evidence
would likely result in
an acquittal at trial.
The right to consult with counsel is
not an absolute right at the time of
a roadside demand for a breath
sample (as the accused is not under
arrest at this time). Recent case
law developments suggest that in
some circumstances, a person
required to provide a roadside
breath sample may have a right to
consult with counsel prior to
providing a breath sample. In some
instances, the failure to permit
consultation with a lawyer prior to
providing the sample may result in
the exclusion of the sample and any
subsequent evidence. Each situation
is fact specific. An experienced
criminal lawyer who regularly
defends drinking and driving cases
will be able to provide you with an
opinion on whether or not your
constitutional rights have been
violated by the police during the
course of their investigation.
Drinking and Driving Defences
There are a number of ways to defend
against allegations of drinking and
driving. The defences to these types
of allegations vary, from
challenging the accuracy of the
machine receiving the breath sample,
to challenging the officer’s belief
for demanding the sample in the
first place. Other defences may be
raised based on the denial of
constitutional rights prior to the
taking of breath samples.
The area of drinking and driving
case law is extremely complex and it
is difficult to summarize all of the
important aspects of the law in a
short article. Given the numerous
consequences of a drinking and
driving conviction, it is important
to consult with a lawyer in order to
identify possible defences to the
allegations. For a free
initial consultation, call me at
416.297.7200
to discuss your case.
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