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In Canada, there are three drinking and driving offences:

  • Impaired Driving
  • Driving / Having Care and Control while Over 80
  • Refuse to Provide a Breath Sample

You may have heard some non-lawyers refer to these charges as “drunk driving” or “DUI’s”.

Each of these offences is proven and defended in different ways. However, the possible penalties that a convicted individual would face are similar. In each case there are mandatory minimum penalties for these offences.


Impaired Driving

The offence of Impaired Driving prohibits the operation or care and control of a vehicle while the person’s ability to operate it is impaired by drug or alcohol. There isn’t any particular level of intoxication that is required. Even slight impairment is capable of supporting an Impaired Driving charge. However, in order to be convicted, the Crown must prove to the court, beyond a reasonable doubt, that the person’s ability to operate the vehicle was in fact impaired at the relevant time.

The proof of impaired driving is largely based on the observational evidence of eyewitnesses, usually the investigating officer, including the officer’s observational evidence regarding the balance, comprehension, co-ordination, fine motor skills, judgment, physical movement and reaction time of the accused. Impaired Driving cases can become complicated when involving drugs rather than alcohol as the testimony of a Drug Recognition Expert will be required.

The lack of any coordination or comprehension difficulties can be used to refute a charge of impaired driving. Often any videos taken during the investigation become important pieces of evidence to either support or refute impaired driving allegations.

Over 80

The offence of Over 80 prohibits the operation or care and control of a vehicle while the person’s blood alcohol concentration is over 80mg per 100mg of blood. This offence is very technical in nature. A person commits an Over 80 offence when he or she operates, or has care and control of, a motor vehicle with over 80mg of alcohol in 100mL of blood. This is measured by either breath samples or blood samples.

When defending Over 80 charges, the lawyer will often try to have the samples excluded from the court’s consideration and/or challenge the accuracy of the readings. Sometimes the drinking pattern that a person engaged in can impact whether the breath samples taken are accurate at the time of driving. If the approved instrument has been improperly maintained or improperly used, the breath samples may not be accurate.

Refuse to Provide a Breath Sample

In Canada, any person operating or having care and control of a vehicle is required to provide samples of their breath when given a valid demand, unless there is a reasonable excuse why they are unable to do so. When defending a charge of Refusing to Provide a Breath Sample, the first step is for the defence lawyer to evaluate whether the demand for a breath sample was a valid demand.

If the demand was invalid, then it was not an offence to refuse it. The lawyer must also evaluate whether there was a reasonable excuse for the failure or refusal to provide a breath sample. A refusal must be final and unequivocal. Therefore, an accused must have been given a reasonable opportunity to provide the requested sample.

Consequences of a Conviction

On being charged with a drinking and driving offence (i.e., before you’ve even been to court!), your vehicle will be immediately impounded for 1 week and your driver’s licence will be immediately suspended for 90 days.

In each case, if convicted, you will face a criminal record, an immediate downgrade from 6-star driving record for 6 years, much higher insurance rates once you are able to resume driving and you will have to complete remedial measures implemented by the Ministry of Transportation (Ontario) in order to have your licence reinstated.

In addition, the judge may issue a probation or restitution order. A probation order may include: abstaining from alcohol, under-taking community service, submitting to an alcohol or drug assessment, participating in treatment, and any “other reasonable conditions the court considers desirable”. A restitution order compels the offender to compensate the victim, but these are less common in drinking and driving cases.

The potential penalties are even greater when a drinking and driving offence leads to a person being injured or killed. In these cases, you could face a maximum possible penalty of life imprisonment for Impaired Driving causing death or 10 years for Impaired Driving causing bodily harm.

The following chart, prepared by the Ministry of Transportation (Ontario), summarizes the potential costs and penalties associated with impaired driving:

Consequences under the Highway Traffic Act

1 year licence suspension

Remedial measures requirement

6 to 12 month ignition interlock condition upon reinstatement (Stream A or B)

Minimum Penalties under the Criminal Code

1 year driving prohibition

You may be able to drive after 3 months IF you plead guilty within 90 days of being charged AND install an Alcohol Ignition Interlock Device. If you are found guilty after trial, the minimum suspension period is 6 months

Minimum $1000 fine
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