This is a common question among those charged with drinking and driving offences.
Although these charges are not the same, they are closely related as these charges carry the same penalties and are often laid together. You may be found guilty of both, although a conviction can be entered for only one of the charges at a time.
Although they may appear the same, they require different methods of proof and different defences.
Section 253(1)(a) of the Criminal Code of Canada describes impaired driving as: 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 the 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.
Simply put, the offence of impaired driving consists of operating a vehicle while your ability to do so is impaired by alcohol or drugs. With this offence, it is important to note that it does not necessarily involve alcohol and you may be charged with impaired driving if your ability to drive is impaired by drugs as well.
It is also important to note that this offence focuses on the effect of alcohol or other substances on your ability to drive rather than how much you have in your system. In order to prove this charge, the Crown has to show that the your ability to drive was impaired.
Often, this is done through observations of witnesses focusing on the driving, balance, speech, and/or other signs of impairment.
Section 253(1)(b) of the Criminal Code of Canada describes over 80 as: 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 the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
Simply put, the offence of over 80 consists of operating a vehicle with a blood alcohol content higher than the legal limit in Canada (80 milligrams of alcohol in 100 millilitres of blood). It is only involving alcohol and has nothing to do with impairment, unlike the offence of impaired driving.
The level of alcohol in blood is determined by breath tests or, in certain cases, by blood tests. In order to prove this charge, the Crown only needs to prove that the concentration of alcohol in your blood exceeded the legal limit at the time of driving.
If you are charged with results over the legal limit, it is important to note that your case does not end there as there are ways of challenging admissibility of the results as evidence against you either under the Criminal Code of Canada or the Canadian Charter of Rights and Freedoms.
Drinking and driving offences including impaired driving and over 80 are technical and complex which is why it is important to be represented by an experienced criminal defence lawyer if you intend to fight them.
If you are facing criminal offence charges contact Kostman and Pyzer, Barristers for your free consultation today!