While allegations of impaired driving are some of the most frequently litigated issues in Canadian criminal law, they are by no means straightforward. By their nature, allegations of impaired driving tend to be determined on the basis of scientific evidence, often requiring the insights of experts to hash out the details. Even if being caught behind the wheel with a blood alcohol content of over 80 mgs/100mls sounds like an accused might be dead to rights, impaired driving charges directly engage police conduct and Charter rights.

The three typical charges based on impaired driving without causing damage to person or property are Driving While Impaired, Driving Over 80, and Refusing to Provide a Sample.

Driving While Impaired is arguably the least precise of all of three of the charges. It requires that someone have been operating a vehicle, that they be impaired to any degree in their operation of the vehicle, and that this impairment be as a result of alcohol or drugs. In contrast to driving over 80, there is no precise minimum threshold that must be reached to result in a conviction.

Driving over 80 occurs where a driver operates a motor vehicle with more than 80 mgs/100mls of blood. Unlike driving while impaired, it does not require direct evidence of actual incapacitation, merely the presence of a sufficient amount of alcohol in the blood.

Refusing to provide is essentially an enforcement mechanism for other drinking and driving related charges. Subsection 254 of the Criminal Code makes it a criminal offence to refuse to comply with demands to provide a sample without a reasonable excuse. But what are these sampling methods? How do the police and courts determine the amount of blood in your system?

In 2016, there were 215 actual recorded incidents of impaired driving in London. The criminal courthouse in London is at 80 Dundas Street, London ON, N6A 6A3. This courthouse can be reached by telephone. To contact the Criminal Ontario Court of Justice, call 519-660-3013. To contact the Criminal Ontario Court of Justice, call 519-660-3013. As well, London’s court office hours are Monday to Friday from 8:30 am to 5:00 pm. Other courthouses nearby include Exeter, St. Thomas, Woodstock and Stratford.

For information on an upcoming court appearance, click here.

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Testing Procedures

This is a multiple-step project. First, based on the context and the environment, the police must suspect that you, as a motorist, have alcohol in your body.

Then, police request that you provide a breath sample on an “Approved Screening Device” or ASD. ASDs are portable devices used on the spot to approximate the share of alcohol in one’s bloodstream. The Attorney General of Canada designates and approves ASDs prior to their use. This is what officers use for screening at roadside stops.

You should note that even failing this intermediary stage, without anything more, can result in the suspension of one’s driver’s license temporarily, whether or not charges have been laid.

ASDs are distinct from Approved Instruments. In contrast to ASDs, Approved Instruments are extremely precise. They are also immobile, remaining at police stations. Once a driver has failed a test using an ASD, the police then have reasonable grounds to bring them into the station and demand that they be tested using the Approved Instrument. This is the final stage, conducted in a controlled environment by a technician, gathering the evidence essential for criminal prosecutions.

These offences are not limited solely to incidents involving cars and trucks. Motor vehicles are defined in the Criminal Code as any vehicle that is “drawn, propelled or driven by any means other than muscular power, but does not include railway equipment”. This means that other machinery, such as construction equipment, boats, or ATVs qualify, and their operation while drinking risks criminal consequences. You should also not consider this to be an exhaustive list; as of writing, there are still potential criminal consequences for drunken canoeing, although proposals to change this are in the works.

e-Bikes have also previously been considered to be motor vehicles for the purposes of these provisions.

Warm Readings

Even without the final stage being conducted, blowing between .05 and .08 on a roadside test can result in provincial penalties. We in the business call this a “warm reading”. These are not the same as criminal charges, and cannot result in a criminal record or time in jail. However, they are nevertheless serious, with penalties scaling on the basis of repeat offences:

  • First warm readings result in:
    • 3 day licence suspension;
    • $150 administrative monetary penalty;
  • Second warm readings result in (within 5 years):
    • 7 day licence suspension;
    • Mandatory alcohol education program;
    • $150 administrative monetary penalty.
  • Third warm readings result in (within 5 years):
    • 30 day licence suspension;
    • Mandatory alcohol treatment program;
    • Six-month ignition interlock licence condition;
    • $150 administrative monetary penalty.
  • Subsequent infractions (within 5 years):
    • 30-day licence suspension;
    • Mandatory alcohol treatment program;
    • Six-month ignition interlock licence condition;
    • Mandatory medical evaluation;
    • $150 administrative monetary penalty.

Regardless of the kind of vehicle in issue, the motor does not need to be running and the driver does not need to be in the front seat (or whatever the equivalent may be) to risk a conviction for impaired driving. This is due to wording of the section, defining the question in terms of whether the vehicle is under the accused’s “care and control”, not whether or not it is in motion.

In the past, we have defended all manner of Canadians, from institutional traders to construction union workers; hospital employees to students, as well as young professionals of all stripes. In many of these cases we have helped our clients avoid the wide-ranging costs associated with the development of a criminal record, allowing them to continue their careers or studies uninhibited. In all of these cases, we have brought the skills and experience our clients need for an effective defence against allegations of impaired driving.

Can you face an Impaired Driving charge if you are under the influence of drugs?

Yes, it is possible to face an impaired driving charge if you are under the influence of drugs rather than alcohol. TheCriminal Code in section 254 sets out a three-step procedure that must be followed to determine whether an accused is impaired by a drug. The officer must first perform a standard ‘field sobriety test’. Should this step be failed, the second step involves a ‘drug recognition expert examination’. This step is to be conducted at the police station. Finally, if the second step offers the officer reasonable grounds to suspect that the individual is impaired, the third step involves administering a ‘bodily fluid sampling test’. During this test, urine, blood or saliva will be collected from the individual and tested for alcohol and/or drugs.

More detailed information on this topic can be accessed here. Our Firm has successfully handled numerous drinking and driving cases.  The Firm frequently assists in the defence of law-abiding citizens without criminal records who are confronted with impaired driving allegations. We can provide expert representation for a host of accused individuals in London. We have successfully defended institutional traders, construction union workers, financial district employees, students, hospital staff, as well as many other professionals face with impaired driving allegations. For more information on the latest cases the Firm has achieved success in, click here.

We actively defend allegations of impaired driving in London Ontario. If you are in London and have been charged with any offence relating to driving drunk, our firm is available to discuss your options with you during a free consultation. We can be reached at 416-DEFENCE, or at [email protected], and a member of our team of London criminal lawyers would be happy to discuss your matter with you.

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