Impaired Driving
This information is not legal advice, and we cannot guarantee it is accurate, complete, or up-to-date.
Contents
Impaired driving " Over .08" , and refusal
A persons right to contact a lawyer or to be imformed of that right
Licence suspensions
Ignition Interlock program
WHAT IS THE LAW?
There are three main impaired driving related offences:
1. impaired driving
2. "over 80", and
3. refusal or failure to blow or provide a blood sample.
Section 253(1)(a) of the Criminal Code defines the offence of "impaired driving". It states that "Everyone commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug".
Section 253(1)(b) of the Criminal Code defines the offence of "Over 80". It makes it an offence for a person to operate a motor vehicle with blood alcohol level exceeding 80 milligrams of alcohol in 100 millilitres of blood (80 mg%).
Simply put, section 253 creates two offences. This section makes it a criminal offence to drive a motor vehicle, or help someone drive a motor vehicle, while your ability to do so is “impaired” or your blood alcohol level is “over 80".
Section 254(5) of the Criminal Code makes it an offence to refuse to blow or give a blood sample when there is a lawful demand for you to do so.
WHAT IS MEANT BY "IMPAIRED"?
You can be impaired by using either alcohol or drugs. “Drugs” is given a broad but reasonable meaning. This means that drugs include both prescription and non-prescription drugs, and any other chemical agent that may cause impairment.
Courts are likely to consider glassy or bloodshot eyes, unsteady walk, slurred speech, irregular driving pattern, or a smell of alcohol on the breath as common physical signs of impairment. While these are the most common signs of impairment, there may be many others.
WHAT IS MEANT BY "CARE AND CONTROL"?
A person may be in care and control of a motor vehicle if the person has the ability to set the vehicle in motion, or where there is a risk that the person could put the vehicle in motion either on purpose or by accident and become a danger to the public.
If someone is found in the driver’s seat of a motor vehicle, care and control is presumed unless it can be shown that he or she did not occupy that seat for the purpose of setting the vehicle in motion. But, even if the person is not in the driver’s seat (ex: sitting in the passenger’s seat), if it is proven that he or she was using the motor vehicle in such a way that it may be set in motion, that person may still be found to be in care and control. So, there is a danger of being found guilty even if a person is just sleeping in a motor vehicle. It may even be possible to find someone in care and control of a motor vehicle who is simply near the motor vehicle and has the ability to set it into motion.
WILL A PERSON BE ARRESTED IF SUSPECTED OF COMMITTING ANY ONE OF THESE OFFENCES?
Yes. If an officer has reasonable and probable grounds to believe that either someone’s ability to drive is impaired, or his/her blood alcohol level while driving is “over 80", the officer can arrest you immediately. An officer may have reasonable and probable grounds by taking into consideration any signs of impairment or through the use of a roadside screening device.
WHAT IS A ROADSIDE SCREENING DEVICE?
If someone is driving or has care and control of a motor vehicle and a police officer has a reasonable suspicion that he or she has alcohol in their body, the officer may demand an “Alco-Sur” or roadside screening device test. This suspicion may come from any physical signs, an irregular driving pattern, or from any statements made.
A roadside screening device (Alco-Sur) is a portable instrument that is kept in many police cars. The device gives an informal measure of a person’s blood alcohol level. It is not against the law to fail a roadside screening device test, but failing this test will give the officer reasonable and probable grounds to hold a person further and demand that they take a breathalyser test.
A person who refuses a roadside screening device test may be charged with section 254(5), “refusal to blow”. Or a refusal to comply with an approved roadside screening device demand can be used by a police officer as part of the reasonable and probable grounds to make a breath demand.
WHAT IS THE BREATHALYSER TEST?
The breathalyser is a machine which measures someone’s actual blood alcohol level. If an officer has reasonable and probable grounds to believe that a person has committed an impaired or an “over 80" offence within the preceding three hours, the officer may demand that the person go with him to provide breath samples.
The demand must be made right away or as soon as practicable once an officer has reasonable and probable grounds for arrest. These breath samples must be taken as soon as it is practicable after the demand is made. The test is generally done either at the police station or at a mobile testing station.
A person will be required to provide at least two samples of breath by blowing into the mouthpiece of a breathalyser machine. The samples must be taken at least 15 minutes apart.
If the test indicates that a person’s blood alcohol content exceeds the legal limit of 80 milligrams of alcohol in one hundred millilitres of blood (80 mg%), the breathalyser technician will complete a Certificate of Analysis. The certificate will include the results of at least two readings and the times when each was taken. If someone is charged with an “over 80" offence, a copy of this certificate will be given to him or her. It is this certificate that is generally allowed as evidence at trial to prove that the blood alcohol level was over the legal limit.
The test results shown on the certificate will be accepted at trial as the actual blood alcohol level unless you can provide evidence that shows your blood alcohol level was not over the legal limit.
Refusing or failing to provide "an adequate" breath sample is itself a criminal offence.
WHEN CAN AN OFFICER DEMAND A BLOOD SAMPLE?
If an officer has reasonable grounds to believe that, because of any physical condition, a person may not be capable of providing a breath sample, or it would be impractical to get a breath sample, he or she may demand that a blood sample be taken. These samples will then be used to determine the level of alcohol in the blood. If a blood sample shows a blood alcohol level above the legal limit, a person will be given a Certificate of Analysis and will be charged with an “over 80" offence.
These samples of blood can only be taken by, or under the direction of, a qualified medical practitioner who is sure that taking the samples will not endanger the person’s life or health.
A person must be able to give informed consent to the taking of the blood samples (he or she must have enough information about how it works and be able to agree to give samples). If someone is unable to give informed consent due to a mental or physical condition, such as injuries from a car accident, a police officer may be able to get a judge to give her permission to take the samples. These samples will be taken under the supervision of a qualified medical practitioner.
However, you can be charged with failure to comply with a demand for blood samples if you do not have a reasonable excuse.
HOW CAN I BE CHARGED WITH A REFUSAL TO BLOW OR GIVE BLOOD SAMPLES?
If someone refuses to comply with a valid demand for a roadside screening test, a breathalyser test, or a blood sample, he or she can be charged with refusal under section 254(5) of the Criminal Code. Having a "reasonable excuse" is a defence to this charge.
There is no all-inclusive definition of reasonable excuse. Generally, a “reasonable excuse” is anything which makes the demand either extremely difficult to agree to or the person’s health would be substantially at risk if a sample was given. Generally, it is not a valid excuse if it is impossible for someone to understand the demand because he or she is too drunk.
If convicted of refusal to blow or give a blood sample, you will receive the same penalty and driving prohibition/suspension as if you did give the sample and were found “over 80”.
CAN A PERSON BE CONVICTED OF BOTH IMPAIRED AND "OVER 80"?
Yes. While a person can be tried and found guilty of both, the rule against double punishment means that there would be an automatic judicial stay on one. This means that a person cannot be punished for both. The person’s criminal record will not reflect the charge for which a judicial stay has been entered.
CAN A PERSON BE CONVICTED OF BOTH REFUSAL TO BLOW AND IMPAIRED?
Yes. A person can be convicted of both refusal to blow and impaired driving if the evidence proves they are guilty of both. The legal consequences of being convicted of refusal are the same as for impaired driving or driving “over 80".
