Drinking and Driving (DUI/DWI): Impaired Driving

An impaired driving charge, from the moment an individual is pulled over, is a life-changing charge that carries with it a heavy stigma.
It can become very costly in terms of fines on both a provincial and federal level, but also the effects it will have on one’s life moving forward.

Impaired driving can lead to imprisonment and a criminal record that will remain for life. If you have been charged with impaired driving, obtaining a defence lawyer is critical to ensure this charge does not dictate your future.

consumption of alcohol while driving

 

Do not plead guilty to an impaired driving charge before contacting a lawyer. Call us today and find out how we can defend your case and represent you in court.

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What is An Impaired Driving Charge? – Ontario

Impaired driving is the operation of a vehicle (which can include cars, trucks, boats, snowmobiles and off-road vehicles) while your ability to do so has been compromised to any degree by the consumption of alcohol, drugs or a combination.

Throughout Canada, the maximum legal “blood alcohol concentration” (BAC) for fully licensed drivers (in Ontario, a G license) is 80 milligrams of alcohol in 100 millilitres of blood, or better known as under 0.08. Driving with a BAC of 0.08 or over is a criminal offence with severe penalties.

As impaired driving is a very serious offence that affects society as a whole, Ontario has taken a stronger stance to its enforcement. In Ontario, if a BAC between 0.05 and 0.08 is found, one can also face serious charges, notwithstanding the fact that it is under 0.08. This is commonly referred to as the “warn range.”

Drivers age 21 or under and novice drivers of any age (with either G1, G2, M1, or M2 licenses) must not have any presence of alcohol in their blood when behind a wheel. This is referred to as the “zero BAC” or “zero tolerance” rule.

Impaired Driving Penalties

If an individual is convicted of impaired driving, the individual will face immediate penalties under the Ontario Highway Traffic Act and the Canadian Criminal Code.

Impaired Driving Laws in Ontario

Ontario’s Highway Traffic Act

The immediate penalties for impaired driving offences, even if it is a first offence, include: an immediate 90-day license suspension, a $550 administrative penalty, and a $275 licence reinstatement fee. even if you’re riding in holidays. ( Lean more about holiday drinking and driving here ).

The individual’s vehicle will be impounded for seven days and there will be costs incurred for the amount of time it is impounded and towing fees.

Approximate guidelines for number of drinks/ to body weight ratio in canada

( Source )

For a second and subsequent offence within 10 years, mandatory education of treatment program is required.

For a third or subsequent offence within 10 years, an ignition interlock condition will be placed on your license for a minimum of 6 months.

An ignition interlock device is an in-car alcohol breath-screening device that prevents a vehicle from starting if it detects a blood alcohol concentration over a pre-set limit of 0.02. This device is located inside the vehicle and is connected to the engine’s ignition system.

Additional Penalties if Convicted

Ontario has taken a strong stance on impaired driving laws, and as such, has implemented additional penalties to the above Highway Traffic Act penalties, if convicted.

First Offence: A minimum one-year license suspension
Second Offence (within 10 years): A minimum three-year suspension
Third or Subsequent Offence (within 10 years): A possible lifetime licence suspension

Heightened Penalties for Specific Situations

The Ontario government has recently increased their penalties for these specific situations:

1. Being within the “warn range”. This range indicates a blood alcohol concentrate between 0.05 and 0.08

2. Violating the alcohol and drug zero tolerance requirement. This requirement is for those 21 years and younger, as well as novice and commercial drivers.

3. Failing a Standardized Field Sobriety Test.

If an individual falls within any of these specific situations, they face additional penalties as well as the immediate penalties listed above. Those additional penalties are:

First Offence: License suspension for 3 days and a $250 penalty

Second Offence (within 5 years): License suspension for 7 days and a $350 penalty

Third or Subsequent Offence (within 5 years): License suspension for 30 days and a $450 penalty.

Each one of these offences includes an additional reinstatement fee of $275; each time the license is suspended.

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Impaired Driving in the Criminal Code of Canada

Criminal Code of Canada

Impaired driving, either by alcohol or drugs, is governed by section 320.14 of the Criminal Code. An impaired driving conviction is extremely serious and can lead to fines and imprisonment, in addition to provincial penalties. If a person is charged with impaired driving, it would be in their best interest to obtain legal counsel immediately.

What is Punishable?

The Criminal Code penalties for impaired driving encompasses both alcohol and drug impairment.

For alcohol related impairment, the penalties cover a charge of having a BAC over 80 mg per 100ml within two hours of driving.

For drug related impairment, specifically cannabis, the penalties cover having 5ng or more of THC per mL of blood within two hours of driving. In terms of other drugs such as LSD or cocaine, any detectable level within 2 hours of driving is punishable.

For a combination of both alcohol and drug related impairment, having a BAC of 50 mg per 100 mL with 2.5ng or more of THC per 1mL of blood within two hours of driving is punishable.

Section 320.14 of the Code
Subsection (1) states: Everyone commits an offence who

(a) Operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;

(b) Subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;

(c) Subject to subsection (6), has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation; or

(d) Subject to subsection (7), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drugs that are prescribed by regulation for instances where alcohol and the drugs are combined.

The Code additionally outlines the specific situations where impaired driving leads to bodily harm and death.

Punishment – Fines and Imprisonment

Punishment under the Criminal Code is outlined in section 320.19.
Subsection (1) states: Everyone who commits an offence… is liable on conviction on indictment or on summary conviction

(a) To the following minimum punishment, namely,

  • (i) For a first offence, a fine of $1,000,
  • (ii) For a second offence, imprisonment for a term of 30 days, and
  • (iii) For each subsequent offence, imprisonment for a term of 120 days;

(b) If the offence is prosecuted by indictment, to imprisonment for a term of not more than 10 years; and

(c) If the offence is punishable on summary conviction, to imprisonment for a term of not more than two years less a day.

The Code distinguishes between indictment and summary convictions. Indictment is a term used to define a more serious crime, while a summary conviction is of a less serious nature because they are punishable by shorter sentences and smaller fines.

Punishment in Case of Bodily Harm

Section 320.2 of the Code governs punishment for bodily harm.

In the event that an individual causes bodily harm due to impaired driving, that individual is liable on indictment or on summary conviction. The minimum punishment for a first offence is a $1,000 fine. A second offence has a minimum punishment of imprisonment for a term of 30 days. For each subsequent offence, there is a minimum imprisonment for a term of 120 days.

If the offence is prosecuted by indictment, there will be imprisonment for a term of not more than 14 years. If the offence is punishable on summary conviction, there will be imprisonment for a term of not more than two years, less a day.

Punishment in Case of Death

wrongful death

 

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Section 320.21 of the Code governs punishment in the case of death. In the event that an individual causes death due to impaired driving, that individual is liable on conviction on indictment to imprisonment for life and to a minimum punishment of a $1,000 fine for a first offence, imprisonment for a term of 30 days for a second offence, and for each subsequent offence a term of imprisonment of 120 days.

Aggravating Circumstances in Determining Sentence

In determining a sentence, the court will look at the “aggravating circumstances”. This term refers to the factors that increase the severity of the incident. The Code outlines the following aggravating circumstances in section 320.22:

(a) The commission of the offence resulted in bodily harm to, or the death of, more than one person;

(b) The offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place;

(c) A person under the age of 16 years was a passenger in the conveyance operated by the offender;

(d) The offender was being remunerated for operating the conveyance;

(e) The offender’s blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 mL of blood;

(f) The offender was operating a large motor vehicle; and

(g) The offender was not permitted, under a federal or provincial Act, to operate the conveyance.

Mandatory Prohibition Order

If an individual is convicted of impaired driving, they will additionally face a mandatory prohibition order prohibiting the offender from operating the type of conveyance in question. The prohibition periods are outlined in section 320.24(2) of the Code. The prohibitions are as follows:

First Offence: A minimum prohibition of one year and a maximum prohibition of three years, plus the entire period to which the offender is sentenced to imprisonment;

Second Offence: A minimum prohibition not less than two years and not more than 10 years, plus the entire period to which the offender is sentenced to imprisonment; and

Subsequent Offences: A minimum punishment of not less than three years, plus the entire period to which the offender is sentenced to imprisonment.

Impaired Driving – Statistics Canada

In 2015, the police reported 72,039 impaired driving incidents. This equates to a rate of 201 incidents per 100,000 population. 122 of the reported cases caused death and 596 caused bodily harm. The impaired driving rate in 2015 was 65% lower than the rate in 1986 (when comparable data was first collected). Drug-impaired driving incidents has risen since 2019.

Among the reported incidents in 2015, 3,000 involved drug-impaired driving. 7 of those incidents caused death and 19 caused bodily harm. The statistics show a correlation of those who have driven after drinking, have done so more than once. On average, those who have done so have six times in the preceding 12 months.

Almost half of the impaired driving incidents occur at night, between 11:00PM and 4:00AM, with peaks being recorded on the weekend. The impaired driving rate is higher amongst young drivers, aged 20 to 24, with statistics showing this demographic in 480 incidents per 100,000 drivers.

New Impaired Driving Laws: Bill C-46
Bill C-46, An act to amend the Criminal Code, changes impaired driving laws and reflects the new drinking and driving laws of 2019.

Changes to Per Se Blood Drug Concentration

A new “low Blood Drug Concentration” offence was created which is punishable only by a fine of no more than $1000 and which would not count as a previous conviction for the purposes of minimum sentencing in impaired driving proceedings.

Mandatory Alcohol Screening

Allows an officer to require a driver to provide a breath sample on an ASD. This is a change from the current law, as now an officer does not need a reasonable suspicion that the driver has alcohol in his or her body. Reasonable suspicion is required if as ASD is not at hand. The reason for this change is to allow a deterrent effect, to assist officers stop an impaired driver before an accident arises.

Expansion of the Use of Approved Screening Devices

The expansion now includes devices that test bodily samples such as oral fluid for the presence of drugs. With the legalization of marijuana this expansion is seen as a necessary investigatory tool, and would not be used to prove the offence at trial. An officer could demand that an individual submit to a test where the officer has grounds to suspect that the individual has a presence or drugs in their body.
As the rights of officers have increased, it has become increasingly important for an individual charged or convicted with impaired driving to obtain legal counsel to ensure their rights are properly considered and defended.

Blood Sampling

An officer is able to demand that an individual provide a blood sample if the officer has reasonable grounds to believe that an individual has committed an offence of driving while impaired by a drug or a prescribed medication. This is a change from the current approach, which says a blood demand can only be made after a Drug Recognition Evaluation at a police station.

If an individual charged with impaired driving believes a demand for a blood sample was unreasonable, obtaining legal counsel is crucial for the development of the case.

Warrant for Blood Sample Where Individual is Incapable of Consent

A justice may issue a warrant to obtain a blood sample from an individual where the justice is satisfied that there are 1) reasonable grounds to believe that the person was involved in an accident causing bodily harm or death within the previous 8 hours 2) there are reasonable grounds to suspect there is alcohol or a drug in the individual’s body and 3) a medical practioner has the opinion that the individual is not capable of consenting and that taking the sample would not endanger the individual’s health. This warrant may be challenged with the appropriate legal counsel.

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Evidentiary Presumption

There is a rebuttable presumption, that is, a presumption that must be proved otherwise, regarding the finding of a drug in an individual’s body and the signs of impairment observed by the officer. Legal counsel is in the best position to challenge this evidentiary change.

What does Driving While Impaired Mean?

Driving impaired means operating, a car, truck, boat, snowmobile, and off road vehicles under the influence, in any degree, of alcohol, drugs, or a combination.

How Can you Prove that Someone is Driving While Impaired?

Standardized Field Sobriety Test

An officer can carry out a roadside standardized field sobriety test.

Breath Testing

A police officer can demand a breath sample roadside from any driver they stop, to determine the individual’s blood alcohol concentration. If a driver fails the test, or refuses to take it, they can be immediately suspended from driving and face criminal impaired driving or related charges.

Drug Recognition Evaluation

A drug recognition evaluation helps determine if the impairment is caused by drugs. If a driver fails the test, they can be immediately suspended from driving and face criminal impaired driving charges.

Approved Drug Screening Devices

A police officer may demand an oral fluid sample. If presence of a drug is detected, young, novice and commercial drivers can be immediately suspended from driving.

What Are the Effects of Impaired Driving?

Effects on the Body

Alcohol effects each person differently, but even with one drink, a driver’s ability to react to things is reduced. The effects of alcohol can include blurred or double vision, a decrease in capacity to pay attention, and slower reflexes in order to make decisions while driving. Drugs, including those that can be prescribed by a doctor or purchased over the counter, can also impair your ability to driver for example fatigue and drowsiness.

Recreational drugs, such as marijuana or cannabis, can increase the risk of being involved in a collision. This includes the consumption of marijuana through a food item (also known as “edibles”) smoking or vaping. The Canadian Society of Forensic Science released a report showing that impairment from cannabis begins almost immediately and can last up to 6 hours or longer. The duration depends on the dose of THC.

Effects on Society

Impaired driving is serious as it does not only have an effect on the individual driving, or those in the car, but the public at large. Innocent bystanders and drivers are in harm’s way when an individual decides to drive impaired. Additionally, one collision can lead to several others depending on the setting and can severely impair, or even cause death, to others. Impaired driving is completely preventable with the increase of ride share technology (such as Uber and Lyft), taxis, and the expansion of public transit. Additionally, an individual who intakes prescribed medication or those over the counter should be knowledgeable of the effects of the medication and ask questions about side effects.

Social Repercussions of Impaired Driving

Insurance: If found at fault for an automobile accident while being impaired, your automobile insurance policy will not cover the damage to your vehicle. Additionally, most insurance companies in Canada will not insure anyone convicted of impaired driving for three years after the conviction. Convicted drivers will have to obtain “facility insurance” which has extremely high rates.

Criminal Record: If you are convicted of impaired driving, you will hold a criminal record for the rest of your life. Your personal information, such as your photograph and fingerprints, will be recorded in the RCMP database, which if accessible throughout Canada and the U.S.

Travelling: Having a criminal record seriously inhibits your ability to travel. In most cases, even a simple road trip lasting only a day to the U.S. will be denied.

Immigration: Under Canada’s Immigration and Refugee Act (IRPA), a permanent resident or foreign national is deemed inadmissible to Canada if they are convicted of an offence that is considered “serious criminality”, including an impaired driving conviction. This can mean a permanent resident losing their status and facing deportation.

Whether you have been accused of driving while intoxicated, sexual assault, or any other criminal charge, call Pyzer Criminal Lawyers today.

If you are charged with a crime in Toronto, Contact Pyzer Criminal Lawyers

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