Impaired Driving in Canada: An Introduction

IMPAIRED DRIVING IN CANADA - AN INTRODUCTION

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What's the difference between "Over 80" and "Impaired Driving"?

Both Impaired Driving and Over 80 are criminal offences that carry the exact same punishment. Additionally, both the offences arise when an individual allegedly operates a motor vehicle while their ability to do so is impaired by alcohol or a drug. That's not to say, however, that they're the same crime.

To charge someone with Impaired Driving, police need to have reasonable grounds to believe that the individual in question is operating a motor vehicle while their ability to do so is impaired by alcohol or a drug. Unlike the offence of Over 80, there is no minimum blood-alcohol concentration required to charge someone with Impaired Driving. Therefore, the offence is dependent upon evidence of impairment, rather than a specific blood-alcohol concentration. Police typically gather evidence of impairment by observing the individual's manner of driving, their fluidity of speech, and the soundness of their motor skills. Persons who don't drink often, or who have a low tolerance to drugs or alcohol may be more susceptible to a charge of impaired driving because of the greater-than-normal effects that the alcohol or drug has on their body. Even the consumption of only a few drinks over an extended period of time can cause a person of this sort to suffer from impairment.

The offence of Over 80, on the other hand, requires that an individual have a specific amount of alcohol in their bloodstream. The criminal limit for a driver's blood-alcohol concentration is 80 milligrams of alcohol in 100 milliliters of blood. In order to arrest an individual suspected of driving with a blood-alcohol concentration of over 80, police must conduct an approved field sobriety test, which can either be by way of an Approved Screening Device (ASD), or a physical field sobriety test. In the modern world, the test is almost always conducted by using an ASD. Let LawyerSelect.ca connect you with a top Toronto Impaired Driving Lawyer who stays on top of the most current legal issues.

What does the Crown Attorney need to prove in order to convict me for Impaired Driving?

In order for the Crown Attorney to secure a conviction for impaired driving, they'll need to prove to the court beyond a reasonable doubt all of the following:

• The individual in question was, in fact, operating a motor vehicle at the time and place in question.
• That there is evidence of any degree of impairment of the individual's ability to operate a motor vehicle at the time and place in question. It's very important to note here that ANY degree of impairment will suffice, even if very minute.
• The individual in question was impaired by an alcohol or drug at the time and place in question.

It should be noted that the Crown Attorney doesn't have to prove that the individual was driving at the time and place in question. Rather, all they're required to prove is that the individual was in Care and Control of the motor vehicle at the time an place in question. Contact us at LawyerSelect.ca, and we'll connect you with a top Toronto Impaired Driving Lawyer. 

What's a roadside screening device (ASD), and how does it work?

An approved screening device (ASD) is a tool of measurement designed to quantify the concentration of alcohol in an individual's bloodstream. This is the instrument that is used by law enforcement to check drivers for roadside sobriety. Police are authorized to demand that a driver submit to the screening test if they have reasonable grounds to suspect that the individual has alcohol in their blood. Again, you'll notice here that evidence of ANY presence of alcohol in the bloodstream will suffice and enable the officer to make a roadside screening demand.

It's important to make a crucial distinction here between the ASD and another measurement device known as the Approved Instrument. The purpose of the ASD is to act as an investigatory tool for police to detect the approximate concentration of alcohol in the driver's bloodstream. The readings provided by the ASD are not conclusive of the driver's blood-alcohol concentration, but serve only as an investigatory tool to aide police in their investigation. If, after providing a sample of their breath into the ASD, the driver registers a fail result, then this has the effect of elevating the police's evidentiary foundation from suspicion of the presence of alcohol in the bloodstream, to belief that the individual does have alcohol in their bloodstream. This is the point at which the individual is arrested and taken to the police station where they're required to provide an additional two samples of their breath into the Approved Instrument (AI), which is sometimes referred to as the Intoxilyzer. The AI is a much more finely tuned measuring device than is the ASD. The AI will take two samples of the individual's breath spaced at minimum 15 minutes apart. Upon the completion of the second sample, the machine will calibrate the results and provide a blood-alcohol concentration for the individual to the nearest 3rd decimal point.

It should be noted that individuals arrested for over 80 will necessarily have to provide the two samples of their breath into the AI, whereas an individual arrested for impaired driving isn't required to. This is because the evidentiary foundation for an arrest for over 80 is based on the result of the ASD, whereas the evidentiary foundation for an arrest for impaired driving is based on the manifestations of impairment coming from the driver. At LawyerSelect.ca, we make it our business to know the best Toronto Impaired Driving Lawyers and connect you with them. Contact a client service specialist now to take advantage of our free lawyer referral service, and get in contact with a top Toronto Impaired Driving Lawyer. 

What happens if I blow a fail into the ASD by the roadside?

As we explained above, if an individual registers a fail result into the ASD, then this has the effect of elevating the police’s evidentiary foundation from suspicion to belief that the individual has alcohol in their blood-stream while operating a motor vehicle. What typically happens next is the individual is arrested for over 80 and taken back to the police station where police will demand that they give a further two samples of their breath into the AI. Once back at the station, the readings provided into the AI will form the majority of the case against the individual suspected of over 80. However, sometimes their blood-alcohol concentration doesn’t reach the criminal level of 80 milligrams of alcohol in 100 millilitres of blood. If that’s the case, no charges will be laid, and the individual will typically be released.

In Ontario, however, a failed result on an ASD may lead to a driver’s licence suspension even if no criminal charges are laid. This is because Ontario has legislated for a lower blood-alcohol concentration for drivers using their power to regulate traffic. In Canada, the power to create criminal laws is reserved exclusively for the federal government. However, the provinces still retain the power to create laws that regulate drivers, traffic and highways (which include roads) within their territory. As such, drivers should be cognizant of that fact, and plan accordingly. Contact us at LawyerSelect.ca, and we’ll put you in touch with the best Toronto Impaired Driving Lawyer for your case, which is one that you can afford and works well with you. 

What happens if I only blow a “warn” on the ASD?

Building on what we explained above, in Ontario, if you provide a sample of your breath into an ASD which results in a “warn” reading, then you’ll lose your driver’s licence on the spot for a period of between 3 to 30 days, depending on whether you’ve done this before. For first time offenders, the licence suspension is only 3 days, with second time offenders losing it for 7 days, and third time offenders for 30 days. For the increased penalties to apply to second and third time offenders, the previous incident must have occurred within 5 years of the current incident.

An ASD will register a “warn” reading if the individual’s blood-alcohol concentration is between 50 milligrams of alcohol in 100 millilitres of blood to 80 milligrams of alcohol in 100 millilitres of blood. We typically call these readings 0.05 and 0.08.

The exact penalties levied on drivers who register a “warn” reading in Ontario are:

• First time: 3 day licence suspension and $150 fine.
• Second time: 7 day licence suspension, $150 fine, and mandatory alcohol education program
• Third time: 30 day licence suspension, $150 fine, mandatory alcohol education program, and 6 month ignition interlock licence condition.
• Subsequent infractions: 30 day licence suspension, $150 fine, mandatory alcohol education program, 6 month ignition interlock licence condition, and mandatory medical evaluation.

One of the most controversial issues surrounding the provincial drinking and driving laws is that the penalties can’t be appealed. They’re typically issued by law enforcement on the roadside, and drivers have no recourse to appeal either the finding or the penalty in the courts, or elsewhere. The incidents will also be recorded on the driving record of the individual, which will almost certainly affect their insurance premiums. At LawyerSelect.ca, we'll ensure that you hire the right Toronto Impaired Driving Lawyer for your case. 

Will I still get charged with Impaired Driving if I'm operating machinery, rather than driving?

Most people are surprised to find out the answer to this question is a resounding, YES! The law states that you can be charged with impaired driving if the machine that you’re operating fits within the description of a motor vehicle, as defined in section 2 of the Criminal Code of Canada. Section 2’s definition of motor vehicle includes any vehicle that can be drawn, propelled, or driven by any means, except muscular power, but does not include a train or any railway equipment (which has its down definition). Contact us at LawyerSelect.ca, and we'll connect you with a top Toronto Impaired Driving Lawyer.

Will I still get charged with Impaired Driving if I'm pulled over on an e-bike?

Again, many people are astounded to discover that they can be charged with impaired driving even when operating an e-bike. The reason for this is that the physical description of the e-bike fits the definition contained in section 2 of the Criminal Code, and as such, is considered a motor vehicle within the law. Contact us at LawyerSelect.ca, and we'll connect you with a top Toronto Impaired Driving Lawyer.

What if the vehicle wasn't in motion - can I still be charged with Impaired Driving?

The situation where this scenario most often arises is where individuals consume alcohol inside their motor vehicle. Under Canadian law, an individual who is found consuming alcohol inside their motor vehicle, whether or not the car was parked or in motion, can be charged with a DUI offence.

Under section 253 of the Criminal Code, an individual can be charged with impaired driving in one of two ways: first, by operating the motor vehicle while their ability to do so is impaired by alcohol or drugs, and second, by having care and control of the motor vehicle while they’re impaired by alcohol or drugs. So, the simple answer to this question is, yes, but please visit the section on Care and Control to learn more about this offence. Contact us at LawyerSelect.ca, and we'll connect you with a top Toronto Impaired Driving Lawyer.

Can the police charge me with both Impaired Driving and Refusing to Provide a Breath Sample?

The simple answer here is, yes, an individual can be charged with both refusing to provide a breath sample and impaired operation if the evidence discloses the presence of both offences. Here’s how it can happen: you’ll recall that proof of impaired driving doesn’t require the use of an ASD, but rather, the evidentiary support is found in proof of impairment while operating a motor vehicle. Proof of impairment can be based on erratic driving, slurred speech, fumbling of documents, and other indicia of impairment. As such, a charge of impaired operation can be laid without the use of an ASD. However, in order to strengthen their case, police officers often demand that the individual suspected of impaired driving provide them with a breath sample into the ASD. If the individual refuses, then he or she can be charged with refusing to provide a breath sample, which is in addition to the charge of impaired operation. Contact us at LawyerSelect.ca, and we'll connect you with a top Toronto Impaired Driving Lawyer.

Are there minimum sentences if I'm convicted of Impaired Driving?

The short answer to that is, yes, but only for subsequent offences. What that means is for a first offence, there are no minimum sentences that are prescribed by the Criminal Code. However, if an individual is tried and convicted for a second offence of impaired driving (or any other DUI-related offence for that matter), they’ll be subject to a minimum sentence of 30 days in jail. For a subsequent conviction (three or more), there’s a minimum sentence of 120 days in jail.

Now, if you or someone you know is facing a second or third conviction for impaired driving, don’t panic. There are things that can be done to lessen the blow. For example, a skilled Toronto DUI Lawyer may be able to secure weekend jail terms, whereby the individual can serve their sentence on weekends. This alleviates many of the issues facing individuals convicted of multiple DUI charges, who often times lose their employment because of the minimum jail sentences involved. A skilled Toronto DUI Lawyer will either negotiate with the Crown Attorney, or secure through a sentencing hearing, an arrangement whereby the jail term is served on weekends. There are several options for individuals who have secured weekend jail terms. Firstly, they can choose to begin serving the sentence on Friday nights, ending on Monday morning. This is the most expedient form of weekend jail sentences, as it counts as 4 days towards your jail term. This is the preferred scheduling arrangement over that of serving Saturday and Sunday and only receiving two days towards your jail term.

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With all that you have at stake, don't risk an Impaired Driving conviction just to save money on legal fees. You'll end up paying more in the end. At LawyerSelect.ca, we specialize in connecting you with the right lawyer for your matter. Whether you have a language barrier, financial constraints, or lack of transportation, we'll ensure you're connected with the right Toronto Impaired Driving Lawyer who speaks your language, is affordable, and lives in your area.  We encourage you to call us anytime, 24/7, to get a Toronto Impaired Driving Lawyer Referral. We're available by phone at (416) 419-6959, or online at LawyerSelect.ca, or click the button below for our referral form.