Frequently Asked Questions
What if I was Sleeping in the Car but did not Intend to Drive?
If the police discover an impaired individual sleeping in their car, that individual may still be charged with an impaired driving offence. Section 320.14(1)(b) of the Criminal Code contains the offence someone could be charged with if they have a blood alcohol concentration over the legal limit of 80 mg of alcohol in 100mL of blood within two hours after they have been driving. The wording of the offence uses the term, “operate” instead of “drive”. Operate has a wider meaning which applies any time a person can be said to have care or control over a vehicle.
For example, a person has care and control even if they are not driving but are in the driver’s seat and the keys are with them in the car. Canadian law allows the police to assume that people in the driver’s seat are capable of driving unless those individuals can prove that they cannot in fact or did not intend to drive. This is a strong and difficult to disprove assumption.
Alternatively, it can be argued that a person can have what is known as de facto care and control of a vehicle. If it can be proven that they were impaired, they had taken some action concerning a vehicle and there was a real risk of danger to other people or property, that is enough to constitute an offence. In the context of an impaired person sleeping in the back of their vehicle with their keys in the car, there is still a realistic chance that they may wake up and try to drive, thus committing an offence. The case of R. v. Day, 2020 NWTTC 18 (CanLII) out of the Northwest Territories explores how the law applies to facts like these. [at paras 40-45]
Will my License be Suspended? For how Long?
According to the Government of Ontario, the police may suspend your license immediately for 90 days if they find that you have a Blood Alcohol Concentration (BAC) over the legal limit after pulling you over and conducting roadside screening. A license may also be suspended for a shorter period if you provide a sample that has a BAC in the warning range between 0.05-0.079. Similar short-term suspensions can be given to drivers under twenty-one years of age or commercial drivers who, by law. cannot have any drugs or alcohol in their systems while driving.
If a person is convicted of impaired driving, their licence will be suspended for one year. A second conviction within ten years carries a three-year suspension. A third conviction in ten years can result in a lifetime driving ban, but that may be reduced if the accused meets certain conditions. Finally, a fourth conviction in ten years will lead to a non-negotiable lifetime suspension. A person who has had their license suspended must also pay a licence reinstatement fee every time their licence is suspended.
Will an Impaired Driving Charge Affect my Insurance?
Regardless of if someone lives in Guelph or elsewhere, an impaired driving conviction will affect insurance coverage. Typically, the charge will result in an increase in the amount paid for at least two years. It is important remember that the law in Ontario says that driving is a privilege and not a right. As such, a change in insurance coverage because of an impaired driving conviction is the consequence of abusing that privilege.
What are the Common Penalties for Impaired Driving and Refusal?
The penalties for impaired driving and refusal to comply with a police demand for a breath sample are the same. Impaired driving offences are an example of what is known as hybrid offences. This gives the Crown lawyers a choice to decide what penalties are best suited for every case. The options they have are either to choose to prosecute a summary offence which leads to lesser penalties, or an indictable offence which are more punitive. A conviction could result in either fines or jail time along with a licence suspension. The specific penalty depends on the facts of the case and the circumstances of the offender.
Section s. 320.19 of the Code contains the minimum and maximum penalties a person faces for an impaired driving offence. For summary offences a person can be liable to a fine of up to $5,000 and imprisonment for two years less a day. Indictable offence impaired driving carries a maximum prison term of ten years. The minimum sentence for a first offence of either type is a $1,000 fine. However, a refusal offence carries a minimum fine of $2,000. A second and third offence carry a mandatory prison term of thirty and one hundred twenty days respectively. It is also worth noting that impaired driving cases that involve causing the bodily harm to or death of another person can result in even larger sentences under ss. 320.20-.21.
Will I Go to Jail in Guelph?
In the context of impaired driving offences, imprisonment is only mandatory if it is a repeat offence committed by the offender, as mentioned above. The sentence an accused person receives should be fair and reflect the uniqueness of their case. To determine the appropriate penalty for an offence, a judge will look at all the facts and hear evidence brought by both the Crown and the accused. Counsel, such as our lawyers in Guelph, can present evidence before a court that makes an argument for the accused to receive a lesser penalty. This evidence is called mitigating factors. The Crown, arguing for stronger sentencing, presents aggravating factors.
Section 718.2 of the Code describes general aggravating and mitigating factors that apply to all crimes. They include evidence that the crime was motivated by bias or hate, if the offender harmed a child, etc. s. 320.22 sets out specific aggravating factors to be examined for impaired driving offences. They include: the presence of bodily harm or death, the size of the vehicle, or the age of any passengers, or if the driver had a BAC more than .012. Cases that feature more aggravating factors than mitigating factors will result in heavier sentences.
Take for example, the cases of R. v. Johnson, 2021 ONCJ 383 (CanLII) and R. v. Ferguson-Kellum, 2023 ONCJ 119 (CanLII). The first case concerned an offender that was sentenced to six years in prison because the driver killed two people and seriously injured a third. The sentence was imposed even though it was a first offence. The second dealt with a young woman who seriously injured a friend when she crashed her vehicle. However, her sentence was only twenty-one months because she was also a first-time offender, was young, came from a difficult family situation and made significant efforts toward her rehabilitation prior to her conviction. These cases demonstrate the flexibility that allows judges to consider the context of the situation during sentencing.