Impaired Driving Charges in Toronto

Drinking and Driving and Impaired Driving

Being charged with “drinking and driving” is a criminal matter in Canada governed by the Criminal Code. This article is a brief and general overview providing legal Information on Drinking and Driving, Impaired Driving, Over 80 and Refuse Breath Sample charges in Toronto, Ontario. Those looking for advice on a drinking and driving charge should consult a criminal lawyer.

What is drinking and driving?
Driving while impaired by alcohol, driving with more than 80 milligrams of alcohol in 100 millilitres of blood (Over 80) or refusing to provide a breath sample are all examples of drinking and driving offences in Canada.

What are the penalties for drinking and driving?
The Criminal Code provides a minimum fine of $600 for a first offence in addition to a criminal conviction registered on your permanent record. Subsequent drunk driving convictions carry minimum jail penalties beginning with 14 days in jail for a second conviction. A drinking and driving conviction will also require a mandatory driving prohibition preventing a prohibited driver from driving anywhere in for a minimum of one year, or three months in a province such as Quebec or Alberta that has an concurrent ignition interlock program. Ontario does not currently participate in an ignition interlock program.

In addition to the penalties mandated under the Criminal Code, a conviction for drunk driving will also drastically affect your motor vehicle insurance coverage and premiums. In Ontario, you will probably be required to insure with Facility Association, which insures high-risk drivers and exacts high premiums. For each of the three years following your conviction, Facility Association will levy a 100 per cent surcharge atop your premiums. It will impose more surcharges, up to a maximum of 250 per cent, for other convictions relating to the same incident, such as careless driving or failing to remain at the scene of an accident. Each insurance company has its own conviction surcharge schedule.

What is the difference between impaired driving, over 80, and refusal to provide a breath sample?

Impaired Driving
In order to establish an impaired driving charge, the Crown must prove that the driver’s ability was impaired by alcohol or a drug. Evidence of impairment may be proven by a combination of driving observations and physical observations of the driver. Evidence of erratic driving, weaving, crossing of the centre line or evidence of a motor vehicle collision may all be used to support an inference of impaired driving. Personal observations tending to reveal signs of impairment may also be relied upon, including: an odour of alcoholic beverage emanating from the driver’s breath, bloodshot eyes, dilated pupils, unsteadiness or slurred speech.

Over 80
Unlike impaired driving, the offence of “over 80” does not require proof of impairment of any kind, only proof that the driver had a concentration of alcohol in their blood exceeding 80 milligrams of alcohol in one hundred millilitres of blood. This alcohol concentration reading is usually determined from an analysis of breath samples obtained by police and processed with a breathalyser machine capable of providing such results. These results can also be obtained by testing a sample of the driver's blood.

Refuse to Blow or Refuse to Provide a Breath Sample
The offence of refusing to provide a breath sample, either for the roadside screening device or an approved breathalyser machine at the police station is another drinking and driving offence. The consequences of a conviction on only this charge are essentially the same as those for a conviction on impaired driving or over 80, namely, a criminal conviction, driving prohibition, license suspension and the same insurance consequences.

A person convicted of refusing to provide a breath sample may also be convicted of driving while impaired. However, the rules of double jeopardy prevent convictions for both over 80 and impaired driving arising out of the same incident.

Stopping a Motorist - From traffic stop to conviction:
In Canada, provincial driving legislation such as the Highway Traffic Act in Ontario, enables police to stop and investigate drivers for drinking and driving offences. Police may also set up stop checkpoints to pull vehicles over for the purpose of checking for signs of drunk driving, known as R.I.D.E. (Reduce Impaired Driving Everywhere).

This power to investigate a driver of a motor vehicle regarding their sobriety does not permit an officer to demand a roadside breath test. In order to require a person to submit to a roadside breath test, the person under investigation must be operating or “in care or control” of a motor vehicle at the time of investigation AND the officer must reasonably suspect the person under investigation has alcohol in his or her system.

The officer may have a reasonable suspicion the person has alcohol in their body if they admit to have recently consumed alcohol or if the person under investigation demonstrates visible signs of impairment. Once the officer reasonably suspects a person to have alcohol in their system, they may require a driver to provide a sample of their breath for testing. In some instances, the failure of police to establish they had grounds to suspect alcohol had been recently consumed may amount to a defence to an over 80 or refuse breath sample charge because the unlawful breath demand would invalidate the subsequent test results.

The roadside screening test results will either return a “pass”, “warn” or “fail” result. The machine is usually calibrated to fail when a person has over 100 milligrams of alcohol in 100 millilitres of blood.

Failing the roadside test will not in and of itself support a conviction for over 80. Evidence of a failed reading is not proof of the level of alcohol in the person’s blood. It is only used to justify a further demand for a sample of breath into an “approved instrument” capable of providing a proper reading of the person’s blood alcohol level.

A “fail” result on the roadside breath test will permit an officer to arrest the driver for the offence of over 80. An arrest for over 80 may also be accompanied by an arrest for impaired driving if the driver exhibits clear signs of impairment by the manner they were driving the vehicle or physical observations of the driver under investigation.

Can I speak to a lawyer before I give a breath sample?
Upon arrest or detention, an individual is entitled to consult with a lawyer for the purpose of obtaining advice about their situation. Everyone on arrest must also be advised of the availability of a 24-hour toll-free legal aid number for those who do not have a lawyer to call but wish to obtain legal advice. If the police fail to advise a person under arrest of these constitutional rights, or fail to provide the person under arrest an opportunity to contact counsel, the failure to do so may result in the exclusion of the defendant’s alcohol level readings obtained at the police station. This exclusion of evidence would likely result in an acquittal at trial.

The right to consult with counsel is not an absolute right at the time of a roadside demand for a breath sample (as the accused is not under arrest at this time). Recent case law developments suggest that in some circumstances, a person required to provide a roadside breath sample may have a right to consult with counsel prior to providing a breath sample. In some instances, the failure to permit consultation with a lawyer prior to providing the sample may result in the exclusion of the sample and any subsequent evidence. Each situation is fact specific. An experienced criminal lawyer who regularly defends drinking and driving cases will be able to provide you with an opinion on whether or not your constitutional rights have been violated by the police during the course of their investigation.

Drinking and Driving Defences
There are a number of ways to defend against allegations of drinking and driving. The defences to these types of allegations vary, from challenging the accuracy of the machine receiving the breath sample, to challenging the officer’s belief for demanding the sample in the first place. Other defences may be raised based on the denial of constitutional rights prior to the taking of breath samples.

The area of drinking and driving case law is extremely complex and it is difficult to summarize all of the important aspects of the law in a short article. Given the numerous consequences of a drinking and driving conviction, it is important to consult with a lawyer in order to identify possible defences to the allegations. For a free initial consultation, call me at 416.297.7200 to discuss your case.
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