Drinking and Driving Offences

The drinking and driving offences include three specific charges under the Criminal Code. They are:

1. Section 253(a) Impaired operation of a motor vehicle, aircraft or vessel;

2. Section 253(b) Operation of a motor vehicle, vessel or aircraft with more than 80 milligrams of alcohol in 100 millilitres of blood;

3. Section 254(5) Refusal to comply with a demand for a breath or blood sample.

Depending on the circumstances, a person charged with "drinking and driving" could also face more serious criminal charges including Dangerous Driving or Criminal Negligence in the operation of a motor vehicle.

A police officer has a right to stop and question any driver of a motor vehicle if he has reasonable and probable grounds to believe that persons ability to drive is impaired by drug or alcohol. In certain circumstances, the police are also authorized to conduct periodic roadside checks as are frequently seen during the Christmas season.

When a motor vehicle is pulled over the police officer generally asks the driver to produce his driver's license, registration and insurance. The police officer will take careful note of how the person produces those documents (i.e. was he slow, did he fumble, or did he have difficulty in producing the documents). The police officer will also look for other indications of impairment; including slurred speech, blood shot or watery eyes, and odour of alcohol on breath or in motor vehicle.

If the police officer has reasons to suspect that the person's ability to drive a motor vehicle is impaired by drug or alcohol, he may request the driver to step out of his car to do certain sobriety tests. Sobriety tests include walking an imaginary line or standing on one foot. During this time, the police officer will be assessing many factors to determine whether or not the person's behavior shows a marked departure from what is considered normal behavior.

While the police also rely upon evidence of erratic driving, a person can be convicted of impaired care and control of a motor vehicle without any actual evidence that the person has driven the motor vehicle. For example, a person who decides to "sleep it off" while remaining in the driver's seat listening to the radio or using some other car fitting, could be convicted of impaired care and control.

If a police officer has reasonable grounds to believe that a person has been drinking, he can demand that the person provide a breath sample. The law requires a person to accompany the police officer and further requires that person to give such samples of his breath as are required to enable a breathalyzer technician to analyze his breath. If a person is unable to provide a breath sample (for example when he has been injured and has been hospitalized) a police officer can demand a blood sample for analysis.

If a person fails to provide a breath or blood sample without reasonable excuse he can be charged with failing to provide a breath or blood sample.

There are certain situations in which a person would have a reasonable excuse to refuse to provide a breath or blood sample; however, we would recommend that a person faced with a demand to provide a breath or blood sample contact a lawyer trained in criminal law before refusing to provide a sample.

A person suspected of a criminal offence has certain legal rights. A suspect is not required to incriminate himself. In other words, he may politely refuse to take part in any sobriety tests. While he would be required to produce a driver's license, registration and insurance, he is not required to tell the police officer how many drinks he has had, when he started or finished drinking, or other questions that a police officer may ask in a drinking and driving investigation.

Under our Canadian Charter of Rights and Freedoms, every person upon his detention (this would include being taken to the police station for a breathalyzer test) has the right to be informed of the reasons for his detention and should be informed by the police officer of his right to contact a lawyer without delay.

Before a person gives a statement to the police or provides a breathalyzer or blood sample, he is entitled to exercise his right to contact a lawyer to obtain legal advice. A person charged with the offence should be given an opportunity to telephone or speak with his lawyer in private.

Once a person has decided upon his own or after discussions with his lawyer to provide a breath sample, he is taken to a room where a police officer trained in taking breath samples will require him to blow into a breathalyzer machine which will analyze the level of alcohol in his blood. Generally two tests are taken approximately 20 minutes apart from each other. It takes only a few minutes to analyze the sample and a person has a right to know what his reading was.

Depending upon a person's level of impairment, he may at that time either be released without being charged or he may be released after being charged upon a "Promise to Appear" in Court on a certain date or he may be held in a jail cell if the police believe it would be unsafe to release the person due to his impairment.

Once a person has been charged with a drinking and driving offence, the police officer prepares a "circumstance sheet" which is a summary of the police officer's observations. The Prosecutor reviews those circumstances to determine whether or not a charge should be proceeded with.

A person who is required to attend Court will appear on the date noted in the "Promise to Appear". On the first appearance date, the person is entitled to request an adjournment for one or two weeks in order to discuss the matter with a lawyer. If a person decides to plead guilty, the matter can generally be dealt with on any Court appearance date including the first appearance. If a person pleads not guilty, a trial date is set for some time in the future.

If a person pleads guilty or is convicted upon a trial of drinking and driving, the penalty that is imposed will depend upon a number of factors. Those factors include:

1. Has he previously been convicted of a drinking and driving offence?

2. If he has been previously convicted, how long ago was it?

3. Was there an accident or any injuries sustained as a result of the drinking and driving?

For a first offence, a person usually receives a fine of at least $500.00 together with a one year suspension of his driver's license. Once a person has been convicted of drinking and driving and his license has been suspended, the Court has no power to authorize that person to use his motor vehicle to drive to and from work or for any other purpose. For a second drinking and driving offence, there is a minimum 14 day jail sentence and for a third drinking and driving offence, the minimum jail sentence is 90 days. The Judge has no alternative but to impose those minimum sentences if the prosecutor proves the accused was given notice that they would be seeking those minimum jail terms and further proves the person's previous criminal record.

The law relating to "drinking and driving" is complex. Any person who finds himself at the unfortunate situation of being charged with a drinking or driving offence should contact a lawyer to obtain advice, whether or not he feels that his is "guilty".

IMPORTANT NOTE

This article is intended only to give a general outline of the law as it relates to drinking and driving. It is not legal advice and if you are ever apprehended for drinking and driving, you should seek the advice of a lawyer immediately.