Alcohol-impaired driving charges are the most common criminal charges in Canada. So if you or someone close to you is facing these types of charges, you are not alone. Despite how common these charges are, they are among the most complicated, technical and misunderstood charges in the entire Criminal Code. But because these charges are so common, police often just assume people are guilty and forget to make sure that they are complying with their constitutional obligations, which can lead to the charges being dismissed.
There are three main categories of charges that relate to drinking and driving:
“Over 80” operation/care and control;
Impaired operation/care control;
Refusing or failing to provide a breath sample.
There are also roughly equivalent categories of offences for cannabis-impaired driving. For more details, see the full page on cannabis-impaired driving.
1. “Over 80” operation/care and control
"Over 80” refers to the blood alcohol concentration (BAC) at which it becomes a criminal offence to operate a vehicle. While it is legal to drink and drive in Canada, it becomes a crime once your BAC exceeds 80 milligrams (mg) of alcohol in 100 millilitres (ml) of blood. In addition, you do not actually have to be driving your vehicle to be charged with this offence. Simply being in the driver’s seat could lead to a charge, even if the keys are not in the ignition. This is what the “care and control” portion of the offence refers to.
Note that under the Highway Traffic Act (HTA), it is an offence to operate a vehicle with a BAC higher than 50mg of alcohol in 100ml of blood. While this is not a criminal offence, being charged with this offence can significantly increase the cost of insurance and have other serious consequences.
Unless you have a reliable breath testing device with you, it is impossible to know for sure what your BAC is if you have consumed any amount of alcohol. This is because the rate at which alcohol is absorbed into your blood depends on, among other things, your gender, your weight and how quickly your individual body absorbs and eliminates alcohol. This is why the popular wisdom that it is ok to drink two beers and drive is incorrect. Furthermore, sleeping, eating or taking a shower have no impact on your BAC, even though they may make you feel like you’ve sobered up. Only time can bring down the concentration of alcohol in blood. This is why it is not uncommon for people to be charged the morning after a night of drinking.
Unfortunately, not knowing that you were above the limit when you were driving is not a legally valid defence. However, there are a several legally valid defences to an “over 80” charge, most of which are very technical or involve the Canadian Charter of Rights and Freedoms. This is why it is important to speak to a lawyer with experience in dealing with these types of charges before moving forward with your case.
PENALTY: The mandatory minimum for a first offence of over 80 depends on the BAC level that is registered. if the BAC is between 80-119mg of alcohol in 100ml of blood, the mandatory minimum sentence is a 1 year driving prohibition and $1,000 fine. If the BAC is between 120-159mg of alcohol in 100ml of blood, the mandatory minimum sentence is a 1 year driving prohibition and a $1,500 fine. If the BAC is 160mg alcohol in 100ml of blood or higher, the mandatory minimum sentence is a 1 year driving prohibition and a $2,000 fine. Subsequent offences involve mandatory jail terms, and in some jurisdictions, judges have been imposing jail for first offences.
2. impaired operation/care and control
Impaired operation refers to the offence of driving while your ability to do so is impaired by alcohol. For this offence, the court will not consider what your blood alcohol concentration (BAC) was. In other words, it doesn’t matter if you were over or under the legal limit. The only factor the court will look at is whether it believes your ability to drive was impaired by alcohol to any degree. This is of course a highly subjective determination that is based on factors such as erratic driving, poor balance, blood-shot eyes or slurred speech. In many cases, these factors can have perfectly innocent explanations such as fatigue, distraction or a medical condition. A skilled lawyer will look to convince the court that whatever evidence of impairment there may be is actually attributable to these sorts of factors and not alcohol consumption.
PENALTY: The mandatory minimum for impaired driving is a 1 year driving prohibition and $1,000 fine for a first offence. Subsequent offences involve mandatory jail terms, and in some jurisdictions, judges have been imposing jail for first offences.
3. refusing or failing to provide a breath sample
Under the Criminal Code, it is an offence to refuse to provide a sample of your breath to a police officer. It is also an offence to “fail” to provide a sample, meaning that you’ve tried to provide a sample but the breathalyzer device has not registered a result.
If this seems harsh and draconian, that’s because it is. However, there is a fail-safe, which is that you can refuse or fail to provide a sample if you have a reasonable excuse. What constitutes a reasonable excuse has been the subject of a great deal of legal debate and is still not clearly defined in law. This could include a violation of your rights under the Canadian Charter of Rights and Freedoms, or a medical condition that makes you unable to provide a sample.
PENALTY: Because the government wanted to discourage people from refusing or deliberately failing to provide a sample, the mandatory minimum fine for refusing to provide a sample was recently increased to double the penalty for impaired operation or operation with between 80-129 mg of alcohol 100 ml of blood.
Currently, the mandatory minimum is a 1 year driving prohibition and a $2,000 fine for a first offence. Subsequent offences involve mandatory jail terms, and in some jurisdictions, judges have been imposing jail for first offences.
what is stream a?
If you are charged with a first drinking and driving offence, you may qualify to get your license back within 3 months instead of 1 year. This is refered to as Stream A. However, in order to qualify for Stream A, you must plead guilty within 90 days of the offence. To put this in perspective, your first court date will likely be roughly a month after the offence date, and it could take several months before you get all the evidence you need to make an informed decision about going to trial or pleading guilty.
The reason Stream A exists is that the government wants to avoid spending court resources on impaired driving cases. This is why they try to rush people into pleading guilty before they have a chance to have the evidence properly reviewed by a legal professional.
Speaking to a lawyer early in the process will allow you to get the information you need to make an informed decision about whether to enroll in Stream A or go to trial before the 90 days expires.
Contact me today for a free consultation if you have charged with impaired driving.