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An impaired driving charge can have a profound impact on the person charged. The consequences of being found guilty include criminal record, loss of driving privileges, increased insurance premiums, not to mention embarrassment and possible career and travel implications.

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Drinking and driving, “DUI,” over 80, impaired driving, refuse to provide breath sample, impaired care and control are all related terms referring to the same phenomenon: an individual has consumed alcohol in such a quantity as to make driving or being able to possibly drive a criminal offence. In Canada, “Driving under the Influence (DUI)” and “drinking and driving” are not the proper terms in the Criminal Code. The correct way to refer to these concepts is “impaired driving” and “over 80” which are separate offences in law.


The current social evil

An individual charged with some form of impaired driving might question why the police officer decided to pursue charges and not just let the person off with a warning. The reason they do not do so anymore is due to the fact that politicians, vocal interest groups (such as MADD), and society at large have come to believe that impaired driving (and more specifically the fallout from it – such as death or injury) is a social evil to be eradicated. Eradication cannot happen if laws that exist for prevention are not enforced. Uniformity of enforcement and zero tolerance are the latest mantras employed by various levels of police. It is simply unacceptable to be driving while your ability to do so is impaired by alcohol (or a drug) or to be in a position where driving is a realistic possibility while in such a condition.

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Different types of charges

Impaired driving has to do with a witness (either civilian or police officer) observing indicia of impairment (poor driving, blood shot or glassy eyes, inability to walk or stand properly, odour of alcohol on the breath, slurring speech). The over 80 offence has to do with a technical evaluation of the actual quantity of alcohol in a person’s blood (as usually measured by their elimination of alcohol on their breath). It refers to an alcohol concentration in a person’s blood in excess of 80mg per 100ml of blood. For a basic impaired case, the accused will be charged with both but can only be properly convicted of one. The reason both are used is to prevent the accused from avoiding conviction by virtue of “technicalities.” The accused person must beat both counts if they are to avoid a criminal record.

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Related charges

In addition to impaired driving and over 80, there are a number of other offences which can often also be laid by police in these types of cases. “Refuse to provide breath sample” is fairly self-explanatory. The accused was obligated to provide a sample of their breath for analysis and they refuse. In law, a refusal attracts virtually the same consequences as providing a sample and it being over the allowable amount. “Care and control” is a related concept except that in these cases, the vehicle is not yet in motion. The driver is in a position to drive and is impaired.


Penalty for a finding of guilt – mandatory criminal record

Being found guilty of any of these offences (impaired OR over 80 OR refusal OR care and control) carries a minimum sentence as mandated by Parliament in the Criminal Code. The minimum sentence is a $1,000 fine for a first offence and 30 days imprisonment for a second offence and 120 days imprisonment for a third offence. This sentence will give the person a criminal record. There is no longer any discretion vested in the Crown or the judge to impose any less severe sentence. It is mandatory. Of course, it is always possible that the sentence could be higher than these minimums.

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Additional penalties

In addition to the fine or jail time, the licensing consequences of a finding of guilt can be more extreme and punitive for the individual. The minimum licence suspension for a first offence is 12 months. For a second offence it is two years. For a subsequent offence, the suspension can be for not less than three years. Again, these periods are minimums. The ranges can be higher depending on the circumstances of the offence.


Still more consequences

In addition to these requirements, the person found guilty of these offences can expect to be required to take a remedial driving instruction course to be completed before re-instatement of a driver’s licence. In Ontario, it is called “Back on Track”. See mto.on.gov.ca for more information. Additionally, the cost of insurance will undoubtedly increase because the impaired driver is now viewed as a higher risk to make a claim or be claimed against. Clearly, the consequences of a finding of guilt can be dramatic. The offender can also expect difficulties in obtaining employment or career advancement due to their criminal record. Further, they may also experience difficulty in travelling abroad, especially to the United States of America. See my article “Travelling with a Criminal Record” found here.

Impaired Driving Defences

There are many possible defences to impaired driving in all its forms. These apply with variations depending on whether impairment is alleged to be by alcohol or by drug.

The two main categories of defences are Standard and Charter. Each case is different and it would be rare to present each of these defences in the same case. What follows are a list of the types of defences that have successfully resulted in the accused being found not guilty.

Standard Defences

Defences that are considered “standard” are:

  • that the person charged was not the driver of the vehicle at the relevant time (either because someone else reasonably could have been the driver or the Crown can’t prove that it was the accused who was driving)
  • that the person charged had no other choice but to drive to preserve life or other emergency
  • that the person was not impaired at the time of driving
  • that the breathalyzer(s) were not functioning correctly
  • that the accused did not understand the demand
  • that the accused did not willfully fail to provide a sample
  • that the vehicle was physically incapable of moving

Charter Defences

By Charter, it is meant the Canadian Charter of Rights and Freedoms, a part of the Canadian Constitution.

Charter defences involve alleged some type of mistake or misconduct on behalf of the police involved in the accused’s case.

Defences that have succeeded in the past include:

  • that the demand to provide breath sample wasn’t made as soon as it could have been
  • that the police were not legally allowed to require a detained person to provide a breath sample

  • that the police didn’t inform the detained person of their rights
  • that the police didn’t inform the detained person of their rights fast enough
  • that the police interfered with the accused’s implementation of their rights

Obviously, there are more variations than what has been listed here and whether it makes sense to rely on a particular defence ought to be discussed with your defence lawyer.