Drug Impaired Driving

 

drug and driving

 

Impaired driving is a serious crime, and if one is charged with impaired driving it is in their best interest to obtain defence counsel immediately.

An impaired driving conviction holds a wide variety of punishments and penalties from both a provincial and federal standpoint, which can become not only costly but also detrimental to a person’s record.

From the moment an individual is pulled over for impaired driving, penalties accrue and can dramatically change a person’s life for the worse.

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What is Considered Impaired Driving?

Impaired driving is the operation 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 of both.

What are Three Impairing Effects of Drugs on Driving?

The impairment by drugs can be different for each person. The three variables that are taken into consideration are the method of consumption, the quantity of cannabis consumed, and the type of cannabis used.

Method of Consumption

1) Smoking

Smoking cannabis either in the form of a rolled up paper, referred to as a “joint”, or a bong or pipe, is a common method of ingestion. The effects of this method will generally begin at the outset of smoking, and peak within 30 minutes. The effect can diminish between 1-3 hours.

2) Vaping

Vaping is a new trend amongst the techniques of consumption. This method heats the cannabis plant matter to translate into a vapour and is considered the cleanest and healthiest way to consume cannabis. This is not to be misconstrued to mean it is okay to consume and operate a vehicle. The effects of this method will generally begin at the outset of smoking, and peak before thirty minutes. The effect can diminish in a couple of hours.

3) Edibles

Edibles are a form of consumption through a food or drink product. It is commonly made in a desert or chocolate, to offset the taste of the cannabis. The effects of this method can begin within 15 minutes to two hours, largely depending on the individual’s metabolism and whether it was ingested with an empty stomach, which can accelerate the absorption. The effect of consuming edibles is roughly 4-6 hours, but can last as long as over 24 hours. Edibles have the longest lasting effect in compared to the other methods of consumption.

4) Tinctures

Similar to edibles, tinctures are consumed orally. The effects are much quicker than an edible, but not as fast as an inhalation method. The full effects can be felt within 20 to 30 minutes. The duration depends on the individual. If the individual is a frequent user, then the effects can last a couple of hours. Infrequent users may feel the effects for several hours.

5) Topicals

This may include cannabis-enriched lotions and balms, used for more therapeutic effects. These have no psychoactive effects and therefore, do not affect one’s ability to drive.

6) Full Spectrum Oil

This highly potent THC oil is used to assist those with health critical issues such as cancer. The effects begin within 15 minutes to an hour, and can last anywhere between 4-6 hours.

7) Dabbing

Dabbing

 

Dabbing is a new form of ingestion, used by individuals who have a high tolerance of cannabis. Dabbing is a technique of heating a small amount of marijuana concentrate using a blowtorch, which creates a combustion.

This small amount of marijuana can contain up to 80% of THC, which creates an intense effect on the body immediately. This method has a duration slightly longer than inhalation methods.

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Quantity of Cannabis Consumed

The quantity of cannabis affects every individual differently depending on personal tolerance and method. As a result, there is no guidance about how much cannabis can be consumed before it is unsafe or how long a driver should wait to drive. Therefore, an individual who uses cannabis should not take the chance, and should refrain from operating a vehicle.

Related Reading : Is it a Crime to Smoke Marijuana During Caribana

Type of Cannabis Used

There are two strains of cannabis: indica and sativa. Indica strains are more physically sedating, while sativa are more uplifting. Some strains vary in THC and CBD levels. THC is the “intoxicating” substance on the plant, while CBD (Cannabidiol), is the naturally occurring compound in the cannabis flower.

THC impairs a driver’s motor skills, reaction time, concentration, and ability to make quick decisions on the road.

It is said that CBD is non-psychoactive, however, this can be misleading. CBD is indeed psychoactive, but it is not intoxicating. The main reason for this is that any substance that has a direct effect on brain function is considered to be psychoactive. CBD does have an affect on the brain, as it can have very powerful anti-seizure and anti-anxiety properties. We recommend you to see this infographic to see what’s legalized medical marijuana in Canada.

Is CBD Legal to Drive On?

CBD does not make a person feel “high” in comparison to THC, which does have an intoxicating effect. CBD is able to lessen the psychoactive effects of THC. This has created a myth that if the CBD and THC levels are equal, they can cancel out and there will no side effects. There are no studies to prove such. However, an individual using only CBD might not exhibit psychoactive effects that can be dangerous to drive with, but each individual should still be cautious of any side effects felt. Reported side effects of using only CBD include low blood pressure, light-headedness, and drowsiness.

Is CBD Oil Safe for Driving?

cbd oil

 

CBD oil usually contains less than 0.3% of THC and does not have an intoxicating affect. Some CBD oils may have no THC at all. Therefore, determining whether or not to drive after using CBD oil will largely depend on how much CBD oil is used, if there is any THC, and the method of using it. If using it orally, or under the tongue, one might feel symptoms of tiredness and therefore should not be driving. Some may use CBD oil for achy joints, which has no affect on one’s ability to drive.

Impaired Driving Statistics Canada

In 2015, the police reported 72,039 impaired driving incidents. This equates to a rate of 201 incidents per a 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. Drug-impaired driving incidents has risen since 2019.

Cannabis impairment increases one’s chances of being involved in a vehicle collision. The 40% of Canadian drivers killed in vehicle collisions tested positive for drugs, exceeding the 33% that tested positive for alcohol. Amongst the population that have tried cannabis, 28% have operated a vehicle while 1 out of 3 Canadians reporting being a passenger to a driver under the effects of cannabis. 65% of people agree that cannabis users often fail to realize their impairment from cannabis. 25% believe that the impacts of cannabis consumption are less detrimental to driving ability than alcohol. 22% of youth who have used cannabis believe driving after use is not as dangerous as drunk driving.

Impaired Driving Penalties – Ontario and Canada

Drivers found impaired by any drug including cannabis, prescription drugs or over-the-counter medications are subject to the same penalties as alcohol impaired drivers. 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.

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. 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.

For a second and subsequent offence within 10 years, a 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

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Heightened Penalties for Specific Situations

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

  • Being within the “warn range”. This range indicates a blood alcohol concentration between 0.05 and 0.08
  • Violating the alcohol and drug zero tolerance requirement. This requirement is for those 21 years and younger, as well as novice and commercial drivers.
  • 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.

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 encompass 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.

Also see : Is Drug Paraphernalia a Crime ? Know More Here

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 drug that are prescribed by regulation for instances where alcohol and that drug are combined.

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

Punishment – Fines and Imprisonment

 

Fines and Imprisonment

( Image Source )

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.

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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

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.

Societal 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.

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 devises 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.

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.

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