Impaired driving – sometimes called “driving under the influence” (DUI) or “driving while intoxicated” (DWI) – is one of the most common criminal offences in Canada. Every year, there are about 15,000 people charged in Alberta with the criminal offence of impaired driving. Regular people from all walks of life often find themselves facing a criminal record, the loss of their driver’s licence, serious employment consequences, and substantially higher auto insurance premiums.
This is also a confusing, highly technical area of the law. Even though impaired driving has been against the law in Canada for decades, the law is constantly changing. There have been major changes to drinking and driving laws in recent years, and there are new court decisions being issued every day.
The consequences for impaired driving or a DUI also continue to increase. The public risks of impaired driving have caused police, Crown Prosecutors, and politicians to treat driving under the influence (DUI) very seriously, and the penalties for a conviction have been increasing.
For these reasons, it is very important that everyone who is charged with an impaired driving offence consult with a DUI lawyer as soon as possible. A criminal charge is an allegation, and you are presumed innocent. Only a experienced criminal defense DUI lawyer can properly advise you about your chances of successfully fighting an impaired driving charge.
THE THREE MAIN IMPAIRED DRIVING-RELATED OFFENCES
There are three main criminal offences that are related to impaired driving:
- Impaired Driving – Criminal Code section 253(1)(a): Operating (or being in care and control of) a vehicle while your ability to do is impaired by alcohol, or by a drug, or by a combination of alcohol or a drug.
- Driving Over the Legal Limit – Criminal Code section 253(1)(b):Operating (or being in care and control of) a vehicle while your blood alcohol level is over 80 milligrams of alcohol in 100 millilitres of blood.
- Refusing a Breath Demand – Criminal Code section 254(5): Refusing to provide a sample of your breath (or blood) after a police officer has lawfully demanded that you do so.
CONSEQUENCES OF A CONVICTION FOR AN IMPAIRED DRIVING OFFENCE
All three of these impaired driving offences carry the same possible penalties. The minimum fine for a first conviction for an impaired driving offence is $1,000, and fines can go as high as $5,000 per offence.
For many people, the most significant penalty for driving under the influence is the loss of their driver’s licence. Anyone found guilty of an impaired driving offence will be prohibited from operating a motor vehicle anywhere in Canada for a period of at least one year. Obviously, this can have significant employment consequences. A conviction is also likely to result in large increases in auto insurance premiums for several years. In addition, if there was a traffic accident related to the impaired driving charge, a conviction could result in your insurer denying you coverage for any property damage or injuries that resulted from the accident.
Because impaired driving is a criminal offence, a conviction will result in a criminal record. The conviction will remain on your criminal record for the rest of your life, unless you apply for a criminal record suspension (previously known as a pardon). It will take at least five years before you are eligible to apply to have your criminal record expunged.
If a person has already been convicted of an impaired driving offence, the penalties can be even more severe. For example, if you are convicted of an impaired driving offence and you have already been convicted of an impaired driving offence once before, the Crown Prosecutor can often require a judge to sentence you to at least 30 days in jail. For a third offence, the minimum penalty is 4 months in jail. Although the Crown Prosecutor does not always seek jail for a second or third conviction, the rule of thumb in Alberta is that the prosecutor will ask the judge to impose the mandatory jail penalties if a person is convicted of two offences within five years, or three offences within ten years. A second conviction for impaired driving will also usually result in a driving prohibition longer than the minimum one year.
It is not unusual for people to be charged with both impaired driving and driving over the legal limit. There is no extra punishment if you are found guilty of both offences. Charging you with both offences simply gives the Crown Prosecutor two different ways to prove your guilt. If you are charged with both impaired driving and refusing a breath sample, there is the possibility you will receive separate penalties for both offences, however.
THE OFFENCE OF IMPAIRED DRIVING
It is against the law to operate a motor vehicle while your ability to do so is impaired by alcohol or drugs. When is a person “impaired”? “Impairment” is not the same thing as “intoxication.” Your ability to drive does not need to be severely impaired or much worse than normal for you to be found guilty. It is enough that a judge is convinced that your ability to drive was at least slightly impaired because you had consumed alcohol or a drug. The police do not need to be able to prove your blood alcohol level in order for you to be convicted of impaired driving – there is a separate offence for driving over the legal limit (see below).
To prove a person’s ability to operate a motor vehicle was impaired by alcohol, police officers will testify about signs of impairment they observed. For example:
- Observations of any unusual driving pattern, such as weaving between lanes or hitting the curb.
- Any admissions by the driver that they had been drinking alcohol.
- Witnesses’ observations about how much the driver had been drinking.
- An odour of an alcoholic beverage coming from the person’s breath.
- Slurred speech or incoherent comments.
- Red eyes or glossy eyes.
- Empty alcohol containers found in the person’s vehicle.
- Stumbling, difficulty standing, fumbling with documents, or other coordination problems.
There are sometimes other reasonable explanations for a person’s behaviour or signs of impairment other than overconsumption of alcohol. The Crown Prosecutor must not only prove that a person had been drinking, but also prove beyond a reasonable doubt that the person’s ability to drive was impaired, and that it was alcohol that caused the impairment. It is important to remember that slight symptoms of impairment do not always mean that a person’s ability to drive is also impaired.
Note that it is also against the law to operate a vehicle while impaired by drugs, or a combination of drugs and alcohol.
THE OFFENCE OF DRIVING OVER THE LEGAL LIMIT (“BLOWING OVER .08” OR “OVER 80”)
It is a criminal offence to operate a motor vehicle while your blood alcohol level is over the legal limit set out in the Criminal Code: 80 milligrams of alcohol in 100 millilitres of blood. This legal limit is sometimes referred to as “.08” (“point zero eight”) or “80 mg/%” (“eighty milligrams percent”). Not everyone’s ability to drive will be impaired at this blood alcohol level. Some forensic toxicologists and alcohol experts believe that certain people are impaired at blood alcohol levels as low as 50 mg/%, and they also suggest that some people are not impaired until their blood alcohol level reaches 100 mg/%. The legal limit established by Parliament represents a compromise between these two blood alcohol levels.
Your own blood alcohol level depends on a number of factors, such as how much you have had to drink, the alcohol content of each drink, when you consumed each drink, your weight, your gender, how quickly you absorbed the alcohol, and how quickly your body eliminates alcohol. It is impossible to precisely estimate a person’s expected blood alcohol level based on the amount of alcohol a person has consumed, since everyone metabolizes alcohol differently.
The following charts provide an approximate estimate of a person’s blood alcohol level after four hours of drinking different amounts of beer:
There are ways for a DUI lawyer to defend you against a charge of driving over 80 – even if your breath samples were over the legal limit. In most cases, before the Crown Prosecutor use your breath samples as proof of your actual blood alcohol level while you were driving, the prosecutor must prove that the samples were taken in accordance with certain legal requirements set out in the Criminal Code. They may not be able to do so. It is also possible to apply to the court to have the breath sample evidence excluded from the trial because the samples were taken in a way that violated your constitutional rights under the Canadian Charter of Rights and Freedoms. There are a number of possible defences to a charge of drinking and driving over the legal limit, so you should consult with a lawyer to determine your chances of success.
THE TWO DIFFERENT TYPES OF BREATH TESTS
A person is only required to give a breath sample where a peace officer legally demands that they provide such a sample. There are two different types of breath demands under the Criminal Code, and two different types of machines that the police use to test a person’s breath:
- Roadside screening tests, conducted using a hand-held machine at the side of the road, and,
- “Evidentiary” breath tests, conducted using a more sophisticated machine at a police station.
Roadside Screening Tests
The first type of breath testing machine is usually used by officers on patrol, or when the police first stop a driver at a Checkstop. This portable, hand-held machine is called an “Approved Screening Device” or a “Roadside Screening Device.” It is used to quickly determine your approximate blood alcohol level, but it is considered less accurate than the machines kept in police stations.
Before a police officer can require you to blow into a roadside screening device, they must have some reason to suspect that you have alcohol in your body. They do not need to believe you are impaired, intoxicated, or that you are over the legal limit, however. It is enough that the officer reasonably suspects that you have some alcohol in your system. This is a relatively low level of proof, far lower than proof beyond a reasonable doubt that you were impaired. If you fail the roadside screening test you will almost always be arrested, but the results of a roadside screening test cannot be used to prove your blood alcohol level at a criminal trial.
Most roadside screening devices are calibrated to give one of three different results: “Pass,” “Warn,” and “Fail.” If you blow a “Fail,” it is likely that you will be arrested for impaired driving. If you blow a “Warn,” the officer may seize your licence, but it is unlikely you will be charged with a criminal offence.
A person usually does not have the right to speak with a lawyer before they provide a breath sample into a roadside screening device. This is a rare example of a situation in Canadian law where a person who is detained by the police does not have the right to contact a lawyer before they participate in a process that could incriminate them.
Breath Tests Used in Court to Prove Blood Alcohol Level
The second type of breath testing machine is found at a police station or at a Checkstop van. This device is sometimes referred to as an “Approved Instrument.” This is the machine that can be used to prove your blood alcohol level in court.
Before a police officer can require you to blow into this machine, they must have reasonable grounds to believe that your ability to drive is impaired by alcohol, or reasonable grounds to believe that you are over the legal limit. If you have failed a roadside screening test, the police will usually rely on that “Fail” result to conclude that your ability to drive is probably impaired. Therefore, if you fail the roadside screening test, the police can use that result to demand that you provide breath samples into the more accurate machine at the police station.
Unlike the roadside screening test, a person does have the right to consult with a lawyer before they decide whether to provide breath samples into an approved instrument. If a police officer tells you that you have the right to speak with a lawyer, you should always tell the officer that you want to contact a lawyer, and speak with a lawyer as soon as possible, so you understand your legal rights and obligations.
Although most people refer to these machines as “Breathalyzers,” a Breathalyzer is just one brand name of these types of machines. In Alberta, the roadside screening device is usually an “Intoxilyzer 400D,” while the machine used at police stations and Checkstop vans is usually an “Intoxilyzer 5000C.”
THE OFFENCE OF REFUSING A BREATH DEMAND
If the police had the legal right to require you to provide either kind of breath sample discussed above, it is a criminal offence to fail or refuse to provide a suitable sample. There is an exception, however, if you have a reasonable excuse for failing to provide a valid sample or refusing to blow. Some possible examples of a reasonable excuse include:
- If there is a mechanical problem with the breath testing machine.
- If you have a medical condition that makes it dangerous or impossible for you to provide a valid breath sample.
- If you do not understand that the officer is demanding that you provide a breath sample because you do not speak the same language as the officer.
In addition, the police officer may not have had the legal right to demand a breath sample in the first place. If the officer did not have the right to force you to provide a breath sample, it is not against the law for you to refuse to provide a sample.
There are possible defences to a charge of refusing a breath demand, so it is important to consult with a lawyer who can advise you whether you might have a defence.
The minimum penalties for refusing to provide a breath sample are the same as the penalties for impaired driving or driving over the legal limit. If you are convicted of refusing a breath demand you will receive a criminal record and you will be prohibited from driving anywhere in Canada for at least one year.
BEING IN “CARE AND CONTROL” OF A VEHICLE
Every driver knows that it is against the law to drive a vehicle while impaired by alcohol, or to drive while over the legal blood alcohol limit. Fewer people understand that it is also against the law to be in “care and control” of a vehicle while your ability to drive is impaired, or when you are over the legal limit.
If you are found in the driver’s seat of a vehicle, you are presumed to be in care and control of that vehicle – whether or not the vehicle is running, and whether or not the keys are in the ignition. For example, a person who is asleep in the driver’s seat of a parked vehicle with their keys in their pocket is still presumed to be in care and control of that vehicle. All too often, people who never intended to drive while impaired find themselves charged with a criminal offence because the police found them sitting in the driver’s seat.
If you can show that you were not sitting in the driver’s seat for the purpose of operating the vehicle, and if there was no significant risk that you could accidentally put the vehicle in motion, it may be possible to convince a judge that you were not in care and control of the vehicle. You should consult with a lawyer to discuss your chances of success at trial.
CURATIVE DISCHARGES FOR ADDICTION TREATMENT
For persons who are charged with an impaired driving offence and who need treatment for alcoholism or a problem with drug or alcohol abuse, the Criminal Code provides a way to avoid a criminal record, or mandatory jail time for a second or subsequent offence. This is known as a “curative discharge.” The accused must satisfy the judge that that they are in need of curative treatment in relation to their consumption of alcohol or a drug, and that it is not contrary to the public interest for them to be discharged. A person who receives a curative discharge is placed on a period of probation to help them overcome their addiction, but they will still lose their driver’s licence for a minimum of one year.
Curative discharges are not granted routinely. The onus is on the accused to show that they are in need of such treatment. This requires evidence from a doctor or addictions counsellor about the nature of the person’s addiction. The accused must also be motivated to take treatment, and there must be a reasonable chance the accused will be able to overcome their addictions issues. If you think you or someone you know might be a candidate for a curative discharge, you should contact a lawyer to discuss the possibility of applying for a discharge.
IMPAIRED DRIVING CAUSING BODILY HARM AND IMPAIRED DRIVING CAUSING DEATH
Where injuries result from an accident, the penalties for a conviction for impaired driving offences can be very severe. The penalties even harsher where someone has died. A conviction for impaired driving causing bodily harm routinely results in jail, and sentences for impaired driving causing death can result in long penitentiary sentences. If a person is charged with an impaired driving offence stemming from an incident where someone has been hurt or has died it is essential that they seek legal advice immediately to help protect their rights.
PROVINCIAL IMPAIRED DRIVING RULES, SEPARATE FROM THE CRIMINAL RULES
In Canada, Parliament has the power to create criminal offences for the entire country, but the provinces also have the authority to create rules related to driving. Because of this, the Alberta legislature has also made rules prohibiting drinking and driving in certain circumstances, in addition to the Canada-wide Criminal Code rules that prohibit impaired driving. The provincial rules are not criminal laws, but they can result in serious consequences, such as the suspension of your driver’s licence. These overlapping federal and provincial rules are one of the reasons impaired driving law can be so confusing.
Note that these rules are changing, or may have already changed. The Legislature has passed new rules increasing the provincial penalties for drinking and driving under the Criminal Code. As of the date this was written (April 2012), these increased penalties have not yet taken effect, but they are expected to take effect very shortly.
PROVINCIAL ADMINISTRATIVE LICENCE SUSPENSIONS
Alberta has established penalties for drinking and driving that are completely separate from the Canada-wide penalties for the criminal impaired driving offences. Under the Traffic Safety Act, a peace officer can temporarily suspend your driver’s licence if certain conditions are met. These suspensions will not show up on your criminal record, but they will be recorded on your driver’s abstract.
Three-Month Administrative Licence Suspension
A police officer can seize your driver’s licence if the officer has reasonable grounds to believe that:
- You operated a vehicle while your blood alcohol level was over the legal limit in the Criminal Code (80 mg/%), or,
- You operated a vehicle while your ability to do so was impaired by alcohol or a drug, or a combination of the two, or,
- You failed or refused, without a reasonable excuse, to comply with the officer’s demand that you provide a sample of your breath.
After seizing your licence, the officer will give you a temporary driver’s licence that takes effect 24 hours after your licence was seized, and that lasts for 21 days. In other words, when the police officer issues you an administrative licence suspension, you are prohibited from driving for one day, and then are given a temporary licence that allows you to drive for 21 days. After those 21 days are up, your driver’s licence is automatically suspended for an additional three months. This three-month “administrative” suspension is completely separate from any punishments you may receive through the criminal court process, and it does not count towards any driving suspension you might receive through the courts.
In practice, if a police officer decides to charge you with an impaired driving offence under the Criminal Code, the police officer will almost always issue the provincial Administrative Licence Suspension as well.
Although the Administrative Licence Suspension program has fewer procedural safeguards in place than the criminal process, it is possible to appeal these suspensions to the Alberta Transportation Safety Board. Unfortunately, the arguments you can make on these appeals are more limited than the arguments you can make at a criminal trial, but successful appeals are possible in some cases. If you are interested in appealing this automatic suspension, you should consult with a lawyer right away. There is a strict limitation period for appealing the administrative suspension, and the suspension starts immediately after the 21 days have expired – whether you appeal the suspension or not. As such, it is important to speak with a lawyer right away if you are interested in appealing the suspension.
24 Hour Roadside Suspension
If a police officer suspects that you have consumed alcohol or a drug, and if the officer also reasonably suspects that the alcohol or drugs have affected your physical or mental abilities, the officer can seize your driver’s licence and suspend your driving privileges for 24 hours. In practice, this often means that if you blow a “Warn” on a roadside screening device the officer will suspend your driver’s licence for 24 hours and tow your vehicle.
One-Month Suspensions for Graduated Licences (Zero-Tolerance Program)
A person who is on a Graduated Driver’s Licence (GDL) is not permitted to have any alcohol in his or her body while driving. If an officer reasonably suspects that a GLD driver has consumed alcohol, the officer can demand that the driver provide a sample of their breath into the same kind of roadside screening device that is used to screen drivers for Criminal Code offences. If the roadside screening device shows that the novice driver has any alcohol in his or her body, the officer can seize the person’s driver’s licence. The officer can also seize the novice driver’s licence if they fail or refuse to provide a breath sample, without a reasonable excuse.
After the officer seizes the novice driver’s licence, the officer will immediately suspend the person’s licence for 24 hours, and issue a temporary driver’s licence. After the 24 hour suspension has ended, the temporary driver’s licence is in force for seven days. After the seven days have expired, the person’s driver’s licence is automatically suspended for one month.
It is possible to appeal these one-month suspensions to the Alberta Transportation Safety Board, but because of the short length of the suspension, an appeal should be filed very quickly.
PROVINCIAL DISQUALIFICATIONS FOR SUBSEQUENT CRIMINAL CODE CONVICTIONS
If you are convicted of a criminal impaired driving offence, the judge will prohibit you from driving anywhere in Canada. In Alberta, the Traffic Safety Act imposes its own consequences if you are convicted of an impaired driving offence under the Criminal Code, apart from the rules set out in the Criminal Code. For example:
- If you are found guilty of two impaired driving-related offences within 10 years, you will be disqualified from driving in Alberta for three years from the date of your latest conviction.
- If you are found guilty of three impaired driving-related offences within 10 years, you will be disqualified from driving in Alberta for five years from the date of your latest conviction.
IGNITION INTERLOCK PROGRAM
In Alberta, person convicted of impaired driving may participate in the Ignition Interlock Program. This program allows some individuals to be re-issued a restricted driver’s licence that allows them to legally drive before the end of their driving prohibition period.
The Ignition Interlock is an electronic device that is installed in your vehicle. A driver blows into to the Interlock to start the vehicle. If the Interlock detects less than a certain amount of alcohol in the driver’s breath, the vehicle will start. The driver must also periodically blow into the Interlock while they are driving. The Interlock is effectively a “mini-breathalyzer” that is installed in a vehicle to prevent people from driving after they have been drinking. If you are accepted into the Ignition Interlock Program, comply with all of its rules, and are issued a special restricted driver’s licence, it is legal for you to drive a vehicle with an Interlock device installed.
For a first offence, the minimum waiting period for the Ignition Interlock is three months from the date you are found guilty of impaired driving. (A judge has the power to increase this waiting period.) This means that a first-time offender who is given a one year driving prohibition could be driving again under the Interlock program three months from the date they plead guilty or are found guilty after trial. For a first-time offender, it costs approximately $2,000 to participate in the Interlock Program for the remaining nine months of their suspension. The costs can be higher for individuals who have a prior conviction for an impaired driving offence. You are required to pay to have the Interlock device installed in your vehicle, and there are fees for a training course and periodic maintenance of the Interlock device.
The Ignition Interlock Program is mandatory in certain cases. In Alberta, some offenders must serve at least six months on the Ignition Interlock Program before they are ever re-issued a normal, unrestricted licence, including where the driver:
- Has previously been convicted of an impaired driving offence;
- Provided blood alcohol readings were more than twice the legal limit; or
- Was convicted of refusing to provide a breath sample.
If you can prove to the Transportation Safety Board that your blood alcohol level was less than twice the legal limit, you may be given an exemption from participating in the Interlock Program, but you still will not get your licence back until the end of any driving prohibition unless you enroll in the Interlock Program.
YOUR DEFENSE FOR AN IMPAIRED DRIVING OFFENCE
If you are currently facing charges for impaired driving while under the influence of alcohol or drugs, driving over the legal limit, refusal to take a breath test, or causing bodily harm while driving impaired, it is important that you speak with an experienced DUI lawyer. Understanding your case, impaired driving charges, and arrest is essential to knowing all of your options. The criminal attorneys and legal team at Pringle Chivers Sparks Teskey has a wide range of expertise when it comes to impaired driving offences and drinking and driving cases. Our lawyers can help provide you with sound advice and a strong defence. Call our Edmonton office today for more information (780) 424-8866.