Impaired Driving Charges
Impaired driving is one of the most common criminal offences in Canada. While alcohol-impaired driving has declined over the past several decades, incidents of drug-impaired driving are increasing.
Canada’s current drug and alcohol-impaired driving regime came into force on December 18, 2018, repealing and replacing the old laws you may be familiar with. This was partially a response to the legalization of cannabis, and partially to make it easier to prove impaired driving cases.
As one of the leading criminal causes of death in Canada, impaired driving is taken seriously by the courts. If you are charged with an impaired driving offense, it is important to consult with a lawyer.
Impaired driving charges in Canadian law
Impaired driving is defined as operating any kind of vehicle, vessel, aircraft or railway equipment while impaired by alcohol or drugs. “Operate” is defined as “to drive [a motor vehicle] or to have care or control of it.” That means that you do not have to be actively driving a vehicle to be found to be “operating” it. If you are found in the driver’s seat of a vehicle, you are presumed to be in “care and control” of it, whether or not the vehicle is running and whether or not the keys are in the ignition, and can therefore be charged with an impaired driving offense.
There are six impaired driving offences under the Canadian Criminal Code:
- Operation while impaired by alcohol or a drug
- Operation while blood alcohol concentration is equal to or over the legal limit
- Operation while blood drug concentration is equal to or over the legal limit
- Operation while blood alcohol and blood drug concentration is equal to or over the legal limit
- Operation with low blood drug concentration
- Failure or refusal to comply with a demand
“Impairment” is not the same as intoxication. You do not need to be severely impaired, obviously drunk or have blood alcohol or drug levels over the legal limit to be found guilty of operation while impaired by alcohol or a drug. It is sufficient to demonstrate that your ability to drive was at least slightly impaired because of alcohol and/or drug consumption.
What is the “legal limit”?
The three legal limit offences come into effect if you are found to be operating a motor vehicle with a blood alcohol and/or drug concentration equal to or over a particular concentration. For alcohol, the legal limit is equal to or over 80 mg of alcohol per 100 mL of blood within two hours of ceasing to operate a motor vehicle. The limits for drugs and combination of drugs and alcohol are set by a separate regulation and depend on the type of drug. They are:
- 5 ng or more of THC per 1 mL of blood
- Any detectable level of LSD, psilocybin, psilocin, ketamine, PCP, cocaine, methamphetamine or 6-mam
- 5 mg of GHB per 1 L of blood
- And 50 mg or more of alcohol per 100 L of blood and 2.5 ng or more of THC per 1 mL of blood
The low blood drug concentration offence was created because there are situations where a person may have a blood drug concentration that poses a safety risk, but not to the level of risk posed by driving over the “legal limit.” Currently, this low limit only applies to THC. If your blood drug concentration of THC is more than 2 ng of THC in 1 mL of blood but less than 5 ng of THC in 1 mL of blood, you could be charged with this offence.
What demands can a police officer make?
Unless there is a reasonable excuse, it is an offence to fail or refuse to comply with a police officer’s demand related to impaired driving. There are three categories of demands a police officer can make, each with its own parameters of when and why they can be made.
Mandatory alcohol screen demands can be made without any suspicion of alcohol or drug consumption if the police officer has an approved screening device in their possession at that time. The results of this kind of test cannot be used to prove your blood alcohol level in court, but they can be used as grounds for other demands.
Screening demands to test for the presence of a drug or alcohol can be made if a police officer has “reasonable grounds to suspect” that you have alcohol or a drug in your system, whether or not you appear to be impaired or intoxicated. Failing a roadside screening test will almost always result in arrest, but the results of roadside screening cannot be used to prove your blood alcohol or drug level in court.
An evidentiary demand can be made if the police have “reasonable grounds” to believe that your ability to operate a motor vehicle is impaired to any degree by alcohol or drug. This can include a demand for an evidentiary breath, blood, urine or saliva sample, or to participate in a drug recognition evaluation.
If you have failed a roadside screening test, this will usually be used to conclude that your ability to drive is likely impaired and therefore to demand evidentiary samples. Other signs of impairment may also be used to form reasonable grounds for this type of demand. As the name suggests, the results of evidentiary demands can be used to prove your blood alcohol or drug level at trial.
Proving an impaired driving charge
To prove that a person’s ability to operate a motor vehicle was impaired by alcohol or a drug, police officers will testify about the signs of impairment they observed. Sometimes there are alternative explanations for these signs of impairment, so the Crown Prosecutor must also prove that the person consumed drugs or alcohol, that the person’s ability to drive was impaired, and that it was alcohol or a drug that caused the impairment.
To prove a charge of driving over the legal limit, the Crown Prosecutor must prove that your blood drug or alcohol level was equal to or over the legal limit within two hours after ceasing to operate. To do so, they may use evidentiary samples taken within that two hour period, or they may use samples taken after the two hour period and a formula to calculate earlier blood alcohol levels.
Penalties and consequences of a conviction
The Criminal Code specifies the minimum and maximum penalties for impaired driving offenses. Generally, a first offense will result in a fine, while a subsequent offense carries a mandatory term of imprisonment. The maximum penalty for impaired driving, not involving harm or death, is a 10-year prison sentence. Minimum penalties range from a $1000 fine for first offenses to 120-day prison sentences for third offenses.
There are also a number of aggravating circumstances that judges consider in sentencing. These include if the offense resulted in bodily harm or death, you were racing another vehicle; a person under the age of 16 years was a passenger in your vehicle; you were being paid to operate the motor vehicle; your blood alcohol concentration was equal to or exceeded 120 mg of alcohol in 100 mL of blood; you were operating a large motor vehicle, like a bus or a tractor-trailer; and you were not authorized to drive a motor vehicle at the time.
Provinces may have their own sanctions beyond the federal laws. In Alberta, those suspected of impaired driving may face a 24-hour license suspension and those with a blood-alcohol level of 0.05 to under 0.08 can face a longer immediate suspension.
Defences in impaired driving cases
Canada’s impaired driving laws are complex and leave room for various challenges, questions and defences depending on the circumstances of the incident and your arrest. Impaired driving charges are not as cut and dried as they seem. In order to make a conviction, the Crown Prosecutor must prove several conditions beyond a reasonable doubt using evidence obtained in accordance with legal requirements.
Impaired driving charges and penalties are serious. If you have been charged with impaired driving, the best course of action is to secure the help of an expert lawyer.
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