Driving while impaired by alcohol or drug, including but not limited to illegal drugs, cannabis, prescription and over the counter medication can lead to serious criminal charges in Canada.
These driving under the influence offences (dui) may seem simple, in fact these impaired driving offences involve a lot of complex legal and factual considerations. And there are more ways to defend against impaired driving charges than you may expect. With the passage of the new Impaired Driving Act in Canada in 2018, some of the traditional strategies of legal defence against these charges will no longer be effective.
While it may be tempting to plead guilty to a drug impaired driving charge or drinking and driving offence in hopes of receiving a lower penalty and avoiding court proceedings, you should be aware these criminal offences carry Mandatory Minimum Penalties and not to mention, a Criminal Record. Furthermore, your driving license will be suspended for one year and your insurance premiums will increase (see below for information on the penalties for impaired driving charges in Canada).
If you are facing an impaired driving charge or drinking and driving charge, it is important to obtain quality legal advice from a criminal defence lawyer (also sometimes known as dui lawyer, impaired driving lawyer, or drinking and driving lawyer) so you can make the best decision about your impaired driving case.
What are the Different Types of Impaired Driving Criminal Offences?
There are three main types of alcohol related impaired driving offences:
- Impaired Driving,
- “Over 80”, and
- Refusal/Failure to Provide a Breath or Blood Sample.
The Impaired Driving Act creates a selection of new impaired driving offences that target drug-impaired driving. The Act creates three new offences that depend on the level of THC that is detected in the accused’s saliva. Although police services are still being trained on how to implement these new laws, they came into force in June 2018.
You can be charged with Impaired Driving (s. 253(1)(a) of the Criminal Code) if a police officer believes you are impaired by alcohol. This belief may be based on various forms of circumstantial evidence. For instance, an officer may observe that there is alcohol in the car you are driving, or the officer may notice that your breath smells like alcohol or that you have slurred speech, or you are unable to pass sobriety tests, such as walking a straight line.
The results of a breathalyzer, blood test, or oral fluid test are not required for you to be charged with Impaired Driving. This means that if issues arise in the course of administering a breathalyzer, but the police believe they still have enough evidence of impairment without the test results, then they may still charge you with Impaired Driving.
You can be charged with Driving “Over 80” (s. 253(1)(b) of the Criminal Code) if the results of a breathalyzer or blood test indicate that you had over 80 milligrams of alcohol per 100 millilitres of blood in your body while you were operating a vehicle.
According to the law as it currently stands, police must obtain a breath sample within 2 hours of the time they form the belief that the offence has occurred. If they do not meet this deadline, it cannot be presumed that the reading they receive from the test provides a sufficiently accurate measure of your level of impairment at the time you were behind the wheel. In this instance, the results from the test will still be admissible against you, but the Crown will need to bring expert evidence (typically from a toxicologist) to establish what your level of impairment was while you were driving.
For “Over 80” it does not matter if you did not appear impaired while you were behind the wheel.
Refusal or Failure to Provide a Breath or Blood Sample
Under the old impairment law, to be convicted of Refusal or Failure to Provide a Breath or Blood Sample (s. 254(5) of the Criminal Code), it had to be proven that the police officer made a valid demand for a breath or blood sample, you failed or refused to provide the sample, and you intended to fail or refuse to produce the sample.
However, the Impaired Driving Act erases the need for police officers to form reasonable grounds to demand a breath sample. Beginning in December 2018, mandatory alcohol screening will become legal, meaning police officers who have performed a legal stop will be able to ask you to provide a breathalyzer sample without any grounds to suspect that you are impaired.
As a result, a charge for Refusal or Failure to Provide a Breath or Blood Sample will become very difficult to defend against.
The Impaired Driving Act creates a menu of three different types of drug-impaired offences:
- the summary conviction offence,
- the drug impairment hybrid offence, and
- the mixed drug and alcohol impairment hybrid offence.
You may be charged with the summary conviction offence if you are found to have between 2 nanograms (ng) and 5 ng of THC per mililitre (ml) of blood.
The first hybrid offence (meaning the Crown may elect to proceed summarily or by indictment) targets only drug impairment. If you are found to have over 5 ng of THC per ml of blood, or if you are found to have any trace of LSD, psilocybin, psilocin, ketamine, PCP, cocaine, mathamphetamine, or 6-mam (heroin) in your system, or if you are found to have over 5 mg of GHB per ml of blood, you will be charged with this offence.
The second hybrid offence is for mixed drug and alcohol impairment. If you are found with over 50 mg of alcohol and over 2.5 ng of THC per mL of blood, you will be charged with this offence.
These offences have yet to enter Canadian courts in a significant way, and modes of defence will soon begin to emerge. The general assumption is that these offences will function like the over 80 offences for alcohol impairment, the charge these new offences were modelled on. However, unlike with alcohol screening, a police officer must form reasonable grounds to suspect that you are impaired by drugs prior to demanding that you provide an oral fluid sample.
Note: if you are medically authorized to use cannabis, this authorization offers you no immunity from the criminal charges related to drug-impaired driving.
What is the potential penalty if you are convicted of an Impaired Driving Offence?
Mandatory Minimum Penalties are as follows:
Penalties for Alcohol-Impaired Driving:
- first offence: $1000 fine,
- second offence: 30-days imprisonment and
- third offence: 120-days imprisonment.
The Impaired Driving Act creates a new regime for handling mandatory minimum punishments for first time offenders who are found to be driving with a BAC over 80. For first time offenders with a BAC between 120 and 159, the mandatory minimum fine is now set at $1500. For first time offenders with a BAC of over 160, the mandatory minimum fine is now $2000. If you are not a first-time offender, or your BAC level is below 120, then the above mandatory minimum penalties for Alcohol-impaired driving apply.
The penalty for failing to comply with a demand to provide a breath or blood sample has risen to a $2000 minimum fine. For second offence, you will face a minimum of 30 days imprisonment, and for a third offence, you will face a minimum of 120 days of imprisonment.
Also, upon being convicted, your driver’s license will be suspended for one year. In Ontario, this suspension will remain in place until you have paid fines, successfully completed an alcohol treatment program and had an interlock device installed in your car.
Penalties for Drug-Impaired Driving:
If you are charged with the summary conviction offence, you will face a maximum fine of $1,000 and up to 18 months of imprisonment.
If you are charged with the hybrid offence for drug impaired driving, or if you are charged with the hybrid offence for mixed drug and alcohol impaired driving, the mandatory minimums are the same as the alcohol impairment penalties outlined above (increasing in severity with each offence).
Other Penalties under Impaired Driving Legislation:
Impaired Driving, “Over 80” and Refusal/Failure to provide a Breath or Blood Sample can be treated as summary (less serious) or indictable (more serious) offences. The Crown Attorney will decide, depending on the circumstances of your case, whether to proceed summarily or by indictment.
If you are convicted of impaired driving on a summary basis, you could be imprisoned for up to 2 years (beyond the Mandatory Minimum Penalties listed above). This maximum penalty has been increased from 18 months.
If you are convicted of impaired driving on an indictable basis, you could be imprisoned for up to 10 years (beyond the Mandatory Minimum Penalties listed above). This maximum penalty has been increased from 5 years.
If your Impaired Driving offence resulted in an accident that caused bodily harm, you could be imprisoned for up to 14 years. If death resulted, you could be imprisoned for life.
Your Impaired Driving charge can also lead to additional criminal charges such as Dangerous Driving of a Motor Vehicle, depending on the police investigation of the DUI incident.
What are the Immigration Consequences if you are convicted of an Impaired Driving and you are not a Canadian Citizen?
The Impaired Driving Act, a part of the Criminal Law Act in Canada, raises the maximum penalty for alcohol impaired driving to 10-years imprisonment. This increase has massive ramifications for a person who is not a citizen of Canada and who has been charged with an alcohol-impaired driving offence. Not to mention having a Criminal Record has significant impact on travel and future employments.
The increase means that alcohol-impaired driving now qualifies as a charge of serious criminality for the purposes of s. 36 of the Immigration and Refugee Protection Act.
In effect, what this means is that a non-citizen cannot be convicted of alcohol-impaired driving and maintain legal status in Canada. The only options available to you to avoid this outcome are to negotiate a plea for a discharge, or beat the charges at trial and gain an acquittal.
In this circumstance, the stakes are very high and the options available to you as an accused person are limited. If you are a non-citizen who has been charged with an impaired driving offence, please contact DUVADIE Law with proven track record of handling immigration and criminal cases for a free consultation at your earliest possible opportunity, so we may begin to work on your behalf.
How can DUVADIE Law, an Ottawa DUI Lawyer act in YOUR defence against an Impaired Driving Charge?
For you to be convicted of Impaired Driving, it must be proven beyond a reasonable doubt that you were impaired by drugs or alcohol at the time in question. Generally, the only evidence that exists in these cases is your testimony and the notes and testimony of the police officers involved. Expert evidence from toxicologists is also common.
DUVADIE Law will carefully examine the evidence provided by the police and look for ways to bring it into question during cross-examination. Inconsistencies in an officer’s account or between the accounts of different officers may be able to raise a reasonable doubt in the mind of the judge.
We would also consider whether you might be able to introduce credible evidence that could raise a reasonable doubt, such as evidence that you were not impaired or that you became “involuntarily impaired.” For example, a bartender may be able to testify that you were at the bar all evening before your arrest and had only drank a small amount, or you may be able to raise evidence that you received drinks you didn’t know contained alcohol or that you took medication that affected you in an unpredictable way.
While it may be more difficult to raise a reasonable doubt in the face of scientific evidence, such as the results of a breathalyzer or blood test, it is important to realize that technology is not foolproof. The tests are administered and their results are interpreted by human beings. It may be possible to question whether the technology was operating correctly, whether the test was administered properly and/or whether the results of the alcohol level, were interpreted correctly.
Furthermore, once police have made a demand for a breath or blood sample, the sample is required to be provided as soon as possible. If there is an unreasonable delay between the demand being made and you being provided the opportunity to provide a sample, it may be possible to argue that your Charter rights have been breached. If such an argument is successful, the court could rule that the results of the test cannot be used against you in court.
A reform enacted by the Impaired Driving Act targets commonly used defences in impaired driving cases. Prior to the passage of the Act, the bolus drinking and intervening drinking defences could be relied on by people charged with impaired driving. The bolus drinking defence could be used by people who had consumed alcohol just prior to driving, and who could effectively argue that their BAC had not yet risen above the legal limit while they were driving.
The intervening drink defence applied when alcohol was consumed by the driver between the time they were driving and the time they were tested. When relying on this defence, the accused argues that the results from the breathalyzer do not accurately reflect the driver’s level of impairment when driving.
The Impaired Driving Act has eliminated the use of these defences by stipulating that it will be presumed that your BAC level within 2 hours of driving was your BAC level at the time of driving. Under the new law, the onus will be on the accused to demonstrate that the BAC results are inflated above the legal limit by post-driving drinking, which will require expert evidence. If an accused is successful in demonstrating this, the presumption will be rebutted.
Drug-Impaired Driving Offences
Since the new drug-impaired driving offences are modelled on the over 80 alcohol impairment offence, the defence tactics will likely mirror those that are common for that offence. There is considerable interest in how these new offences, and the science that supports them, will be interpreted by Canada’s criminal courts. There is a not a solid scientific consensus on the relationship between THC levels and the level of impairment a person exhibits. This means there are yet to be answered questions about how these new offences will mesh with the standard of beyond a reasonable doubt that is applied by the criminal courts. Although there is much uncertainty in this area of the law, it is certain that there will be novel technical arguments to be made on the behalf of people who are accused of these offences.
Refusal or Failure to Provide a Breath or Blood Sample (or Oral Fluid Sample)
Due to new Impaired Driving Act, refusing to provide a breath or blood sample for purpose of alcohol screening will now lead to a charge that is much harder than before, under old law, to defend against.
With the valid demand aspect of the law removed, you are likely going to be limited to providing a reasonable excuse for refusing or failing to provide the sample. Examples of reasonable excuses include: the existence of a language barrier meant that you did not understand what you were being asked to do, you may have a medical condition that would make blowing into a device dangerous or impossible or you may have suffered a panic attack that made blowing into the device impossible.
However, if you have been charged for refusing to provide an oral fluid sample for the purpose of drug impairment screening, the traditional approach to this kind of offence still applies. The officer will need to have made a valid demand. For the demand to be valid, the officer must have sufficient grounds to believe you were impaired. If the way the officer formed the belief that you were impaired is flawed, the demand is not valid and you cannot be convicted for refusing or failing to obey an invalid demand.
If you are facing a Drinking and Driving or an Impaired Driving charge, please call DUVADIE Law at (613) 422-1155 or Toll-Free 1 (855) 422-1155 to set up your free 30-minute consultation.
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