FIRST OFFENDER? DEFEND IMPAIRED DRIVING. 416-DEFENCE

Charges for driving under the influence (DUI) can range from “impaired driving”, “over 80” or “refusing to provide a breath sample.” As a result of the sophisticated breathalyzers and roadside screening devices used by police, these charges are challenging to defend. With the serious consequences associated with a conviction, hiring experienced and thorough defence counsel is critical to achieve the best results.

The Firm regularly defends law-abiding citizens, without criminal records, who are confronted with allegations of impaired driving. We have provided expert representation, defending institutional traders, financial district employees, local construction union workers, hospital staff, students and many other young professionals faced with Impaired Driving allegations and helped them achieve the best results. Recently, after nearly 3 years of litigation, the Firm secured a full acquittal at trial, in its R. v. F.B. [2016], where the accused was alleged to have operated a Skyjack on a construction site, for which keys were found in the ignition.

In the Firm’s R. v. D.B. [2019], a prominent Toronto businessman had breathalyzer readings over 200 mgs and was found on the shoulder of the Don Valley Parkway in a $100,000.00 BMW without gas. After a 3 day trial over 2 years of litigation, the Firm secured an acquittal on all charges. The Firm advanced a number of complicated defences related to police timing in the investigation and arguments related to care and control of a motor vehicle.

In the Firm’s R. v. M.V. [2017], it defended an impaired driving allegations where the driver struck a motorcyclist on the Toronto gardiner expressway and blew over 250 mgs. The Firm further defended an impaired driving allegation in its R. v. D.E. [2018], where the driver was in a collision on the Toronto highway 401, injuring another driver and caught walking down the highway, ultimately blowing 160 mgs.

In its R. v. R.B. [2013], on November 2, 2013, a car struck a poll on Clonmore Drive and sliced in two. The driver, walked away with minor injuries. At the hospital, the driver’s blood was seized without a warrant and registered close to 200 mgs of alcohol per 100 ml of blood. The Firm excluded the evidence on the allegation of Over 80 and Dangerous Driving at Trial.

In the Firm’s R. v. M.V. [2014], it secured a full withdrawal of Over 80 by high profile Bay Street Investment Banker charged at a RIDE stop with a bolus drinking defence. It further secured a withdrawal of Impaired Driving and Over 80 in its R. v. M.Z. [2014], where the driver, a daughter of an OPP officer,  flipped the car in a ditch and had Breathalyzer readings over 160 mgs. The Firm defeated the charges by excluding utterances made at the time of the collision. In its R. v. B.P. [2014] the Firm further secured a withdrawal of Impaired Driving where the driver fell asleep in his vehicle covered in vomit, the matter was resolved without a criminal record.

In its R. v. K.C. [2015] it defended an allegation of Impaired Driving where the female driver had Breathalyzer readings over 260 mgs, and was caught trying to conceal open alcohol in the vehicle at the scene of the accident. In its R. v. J.F. [2015], it defended a Toronto Business Consultant charged with Impaired Driving for combining and consuming over the counter pain medication.

In the twelve months prior to April 2015, it secured three separate Careless Driving resolutions for Impaired Driving allegations in Toronto. The Firm defended a Hollywood Stunt Man charged with impaired driving, where the driver blew over 300 mgs, in its R. v. D.G. [2015].

We have experience critically analyzing breathalyzer readings, including police investigative technique and search warrant protocol. We have extensive technical knowledge of the use, operation and calibration of the latest police breathalyzer technology.

Having a complete understanding of the Elements of the Criminal Offence, Your Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made.

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Legal Information

Frequently Asked Questions

IMPAIRED DRIVING
What is the Difference between Impaired Driving and “Over .80”?
What does the Crown have to Prove for a Conviction of Impaired Driving?
What is an Approved Screening Device (ASD)?
What happens if I register a Fail on the ASD?
What Are the Penalties if a Warm Reading (0.05 – 0.08) registers on an ASD?
Can you be Charged with Impaired Driving if you are Operating Machinery or Equipment?
Can you be Charged with Drinking and Driving on an ebike?
Can you still be Charged with Impaired Driving if the Vehicle is Not in Motion?
What is Refusing to Provide a Sample?
Can you be Convicted of both Refusing to Provide a Sample and Impaired Driving?
Current Penalties for Impaired Driving

Additional Resources

Assault
Assaulting a Peace Officer
Consequences of a Criminal Record
Domestic Abuse
First Offenders
Immigration Consequences
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
Your Rights

What is the Difference between Impaired Driving and “Over .80”?

Impaired driving and “Over 80” are both criminal offences outlined in Section 253 of the Criminal Code. However, they are not the same thing, even though both charges arise when an accused person operates or has the care or control of a vehicle.

Section 253(1)(a) of the Criminal Code sets out that an impaired driving charge requires police officers to believe drugs or alcohol impair the person operating a vehicle. The charge is not dependent on a specific amount of alcohol in the system, rather it depends on evidence of any impairment. For example, impaired driving charges can arise when people are new to drinking or don’t have a very high tolerance for alcohol. Even a couple of drinks can yield impaired driving charges.

Comparatively, Section 253(1)(b) of the Criminal Code sets out that an over 80 charge refers to a specific amount of alcohol found in the blood stream of an individual. The charge requires alcohol be consumed in such a quantity that concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred milliliters of blood. This charge is laid after the police have conducted a sobriety test and found the accused violates this legal limit.

What does the Crown have to Prove for a Conviction of Impaired Driving?

For a conviction of impaired driving under Section 253(1)(a) the Crown must prove:

  • The Accused was operating a Motor vehicle or in Care and Control of the vehicle;
  • There was any amount of impairment of the accused ability to drive at the time;
  • The impairment was by alcohol or drug at the time.

A conviction for impaired driving does not require an individual be actually driving the vehicle. If the accused has a vehicle in his or her care and control, that is sufficient for an impaired driving conviction.

What is an Approved Screening Device (ASD)?

An approved screening device is a portable instrument that measures blood alcohol levels. Section 254 of the Criminal Code defines an approved screening device as a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that is approved for the purposes of this section by order of the Attorney General of Canada.

An approved screening device is what police officers use to check for impaired driving at roadside stops. Police can ask you to submit to an approved screening device if they reasonably suspect a motorist has alcohol in his or her body.

An approved screening device is not the same thing as an approved instrument. The approved screening device is used portably by police officers to try and detect impaired driving. Comparatively, approved instruments are used in a controlled setting with a technician performing the test. Over 80 convictions require testing be done on an approved instrument.

What happens if I register a Fail on the ASD?

If a driver registers a fail on an approved screening device, this gives police officers reasonable grounds to require the individual to submit to a further test using an approved instrument. Approved instruments are used to gather evidence for criminal prosecutions.

A fail of the initial approved screening device may result in a temporary suspension of the driver’s licence, whether or not criminal charges are laid.

What Are the Penalties if a Warm Reading (0.05 – 0.08) registers on an ASD?

If you give a roadside breath sample and your blood alcohol registers between 0.05 and 0.08 you will immediately lose your licence for 3 to 30 days. Although this is not a criminal offence, the consequences remain serious.

The penalties for a warm reading vary depending on whether it is the first time you have registered a warm reading or not. New penalties as of 2009 set out that:

  • 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.

It is also important to note that these roadside suspensions cannot be appealed. They will be recorded on the driver’s record and for the next five years they will be considered when determining consequences for subsequent infractions.

Can you be Charged with Impaired Driving if you are Operating Machinery or Equipment?

Yes, you can be charged with impaired driving if you are operating machinery or equipment, provided it meets the description of a motor vehicle. Section 2 of the Criminal Code defines a motor vehicle as a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment.

 Can you be Charged with Drinking and Driving on an ebike?

Yes, you can be charged with impaired driving if you are operating an ebike. Section 2 of the Criminal Code defines a motor vehicle as a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment.

An ebike has been characterized as a motor vehicle.

Can you still be Charged with Impaired Driving if the Vehicle is Not in Motion?

Yes, Section 253 states that impaired driving charges can arise in two ways: (1) by operating the vehicle; or (2) by having the vehicle in his or her care and control, whether it is in motion or not.

Therefore, if a person is found consuming alcohol in their vehicle that is parked, he or she can still be charged with impaired driving because Section 253 does not require a vehicle be in motion for charges to arise.

What is Refusing to Provide a Sample?

Section 254(5) of the Criminal Code states that it is a criminal offence to fail or refuse to comply with a demand made for a breath sample without reasonable excuse.

Charges for refusing to provide a breath sample arise when an individual is stopped by police and asked to submit to a breath test, but the individual will not do so. It is a criminal offence to refuse to do so.

Can you be Convicted of both Refusing to Provide a Sample and Impaired Driving?

Yes, a person can be convicted of both refusing to provide a sample and impaired driving if evidence proves they are guilty of both. Impaired driving does not require proof from an approved device of a specific blood alcohol content. Therefore, it is possible to prove impaired driving without evidence from a screening device if the accused person refused to give a sample.

Sentencing for Impaired Driving

When an individual is being sentenced after having been convicted of a crime there are many factors that the judge may take into consideration to determine a just and fair sentence. These factors reflect the moral culpability of the offender. Typically, a judge will look at all aspects of the case including the circumstances surrounding the crime, characteristics of the accused, past criminal history of the accused, the seriousness of the crime committed and the harm caused by the accused.

Factors commonly considered by judges when sentencing individuals convicted of impaired driving include; whether the accused is a repeat offender, whether an accident resulted from the accused’s impaired driving, whether the accused had been driving dangerously while impaired, whether the accused’s impaired driving caused bodily injury to anyone and whether the accused’s impaired driving caused the death of a third party.

Repeat Offenders

Generally, judges will be more inclined to impose stricter sentences on those who have past impaired driving convictions.  Incarceration is a common sentence imposed on those who have been convicted of impaired driving multiple times. Courts have consistently shown concern for public safety when sentencing those with multiple impaired driving convictions. The theory is that the accused has not learned from their past impaired driving convictions so more drastic measures must be taken to deter them from such behaviour in the future. Where there is a large gap in time between past and current impaired driving convictions judges may be more lenient upon sentencing.

Impaired Driving Causing Accident

Courts have cited general deterrence as a major motivating factor in imposing harsher sentences on those convicted of impaired driving causing an accident. Where an accident occurs as a result of the accused’s impaired driving, even where no bodily injury occurs, courts will tend to impose higher-than-average monetary fines or even short sentences of incarceration.

Dangerous Driving While Impaired

Where an accused has been convicted of driving dangerously while impaired, sentences tend to be more severe. Courts will impose stricter sentences based on the accused’s culpability in the situation as well as the risk of harm they posed to others on the roads. The higher the risk of harm created by the accused’s dangerous driving, the stricter the sentence will be. In many cases, prolonged prison sentences have been imposed on those who have deliberately put others at risk.

Impaired Driving Causing Bodily Harm

Impaired driving causing bodily harm is one of the most serious impaired driving charges an individual can be convicted of. As a result, Courts tend to treat such convictions very seriously and sentence accordingly. In 2007, the Criminal Code was amended to state that conditional sentences are no longer available for those who have been convicted of impaired driving causing bodily harm. Citing the paramount concern of public safety and deterrence, Courts regularly impose significant prison terms to those who have been convicted. According to R v. Thompson, one to two and a half years in prison is an appropriate sentence for someone convicted of impaired driving causing bodily harm, however longer sentences have been imposed. The degree of bodily injury sustained by the victim will be a factor for the judge to consider when determining in the sentence.

In R v. Laforme the accused who had prior convictions for impaired driving was convicted of impaired driving causing bodily injury after crashing his cars with passengers inside on the way home from a bar. The accused had been cut off at the bar and advised not to drive. He was driving at a high rate of speed when the accident occurred. One of the passengers in the car was rendered a quadriplegic. Due to the severity and permanence of the injuries caused by the defendant, along with his past driving record, he was sentenced 12 months in prison in addition to 12 months which he had already served during pre-trial detention.

Impaired Driving Causing Death

Where death occurs as a result of impaired driving, the sentence imposed will be more serious than that of any other impaired driving charge. Courts have cited the increased problem of drunk driving in our society as the justification for imposing serious prison terms to those who have been convicted. Courts will take a case-by-case approach to impaired driving causing death convictions, ensuring all relevant factors are thoroughly considered. Generally, the sentencing ranges for those convicted of impaired driving causing death will be somewhere between 18 months and eight years, although longer sentences have been imposed.

For example, in R v. Bush, the accused was sentenced to 12 years in prison after pleading guilty to one count of impaired driving causing death. On the day the accident occurred, the accused had been driving erratically before flipping his car into a ditch filled with water. He then refused to help trapped passengers escape the vehicle until they agreed to tell the police his version of events. By the time officers arrived on the scene one passenger had drown in the vehicle. Due to the heinous nature of the accused’s behaviour after the accident occurred, the Court felt that a 12-year sentence was appropriate.

Current Penalties for Impaired Driving.

Recent changes in Canada’s impaired driving laws have increased the penalties for those who are convicted. Currently, those convicted of being impaired by either drugs or alcohol will be liable for a mandatory minimum fine of $1000 and a maximum of 10 years’ imprisonment for their first offence. Those convicted of a second offence will be liable for a mandatory minimum of 30 days’ imprisonment and a maximum of 10 years’ imprisonment. Finally, those convicted of a third or subsequent offence will be liable for a mandatory minimum of 120 days’ imprisonment and a maximum of 10 years’ imprisonment. The penalties for refusal to comply with a demand for a roadside sample are a mandatory minimum fine of $2000 on the first offence and a mandatory minimum of 30 days’ imprisonment and a maximum of 10 years’ imprisonment on the second offence. Finally, for a third or subsequent offence an accused will be liable for a mandatory minimum of 120 days’ imprisonment and a maximum of 10 years’ imprisonment.

Quick Facts

What is a DUI?

Driving Under the Influence can include Impaired Driving, Over 80, or Refusing to Provide a Breath Sample. These are common charges which will require a criminal record, fine and driving suspension if a person is convicted.

How to Drop Drinking and Driving Charges?

Impaired driving offences are aggressively prosecuted. Recent amendments to the law also eliminated a number of effective defences previously used by criminal lawyers. In certain cases, if a lawyer is able to raise enough doubt prior to trial, the offence can be withdrawn or negotiated down. However, many impaired driving allegations now end up in trial because of the recent amendments to the law.

Will I Lose my License?

If you are convicted of drinking and driving your license will be suspended in Ontario. The duration of that suspension is something a lawyer can negotiate with the Crown and will depend on the characteristics of the offender and prior driving record?

Can you go to Jail for Drinking and Driving?

Yes. The Crown will often seek jail if there is a collision, injuries, very high alcohol readings or a prior record. Even without those factors, in some northern regions of Ontario, the local tariff still remains jail for a first offender.

What is the Difference between Impaired and Over 80?

These are both criminal offences, but not the same thing. Impaired driving relates to evidence of impairment and not simply the level of alcohol in a person's system. The officer will look for evidence of impairment before laying this charge, such as bloodshot eyes or stumbling. Over 80 refers to the specific amount of alcohol found in the blood stream of an individual. So, a person could be charged with Over 80 but not impaired.

Is Impaired Driving by Drugs illegal?

Yes. Impaired driving while under the influence of cannabis or other drugs is still illegal. The police have a variety of new tests to determine whether a person is impaired by cannabis. A person can even be impaired by over the counter medication and still convicted.

416-DEFENCE | 416-333-3623