Impaired Driving and Over 80 Lawyers Toronto

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.

Impaired driving, over 80 and refusing to provide a breath sample are proven in different ways. Each is explained below.

In order to establish an impaired driving charge, the crown attorney must prove beyond a reasonable doubt that the driver's ability to operate a motor vehicle was impaired due to the consumption of drugs or alcohol. The court will examine the driver's co-ordination, comprehension and a poor driving pattern in assessing their level of impairment.

Evidence of impairment may be proven by a combination of driving observations and physical observations of the driver. Evidence of poor or 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, slurred speech and a lack of comprehension or response to police demands.

Intoxication and impairment does not require the opinion of a medical expert. A police officer or other lay person is perfectly qualified to give their opinion on whether a person appears impaired by alcohol or drugs. Opinions of police officers about a person's level of impairment are not to be given more weight in court simply because they come from police officers.

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.

A person under investigation for being over 80 does not get to choose whether they will provide a breath sample or a blood sample. Only a police officer can choose whether to demand a blood sample. An officer can demand a blood sample only in two situations. The officer must believe either that the person may be physically unable to give a breath sample, or that getting one would be impractical in the circumstances. Put differently, a blood sample to determine the concentration of alcohol in a person's body is a process of last resort.

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 is essentially the same as a conviction for 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.

To convict someone of failing or refusing a breath sample, the prosecutor must prove three things beyond a reasonable doubt. First, the officer made a valid and lawful demand for the breath sample. Second, the defendant failed or refused to give the sample. Third, the defendant intended that failure. Most breath refusal cases will turn on whether the officer had a sufficient basis to make the breath demand and whether they intentionally failed to provide a breath sample. Quite often, a person may fail to provide a sample due to a medical reason such as an injury or a breathing disorder such as Asthma which may make it challenging to comply with the officer's demand for a breath sample. Read more about refusing to provide a breath sample and how you can defend this type of charge.

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 require the officer to suspect a person has consumed alcohol or is impaired by alcohol or drugs when they commence their investigation. Anyone can be investigated for drinking and driving. While the law allows a person to be stopped in a drinking and driving investigation, the law does not always permit an officer to demand a roadside breath test without more.

In some cases, an officer can demand a roadside breath test only if the person under investigation is operating or "in care or control" of a motor vehicle and the officer reasonably suspects the person has alcohol in their body. 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. Even the odour of an alcoholic beverage emanating from the mouth of the driver may be enough to initiate a roadside breath test. In other cases, an officer who has an approved screening device with them can demand a roadside breath test from any driver they have lawfully stopped, with no suspicion required.

Once the officer reasonably suspects the driver to have alcohol in their system, they may require the driver to provide a sample of their breath into a special breath testing device for analysis. 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 calibrated to fail when a person has over 100 milligrams of alcohol in 100 millilitres of blood. Failing the roadside test is not evidence that can be used at a person's trial for an over 80 charge.

Evidence of a failed test 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. Once a driver fails the roadside breath test, the officer will be permitted to arrest the driver for the offence of driving with over 80 mg of alcohol in their body. An arrest for over 80 charge 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. An arrest will require the driver to be brought to the police station for a further set of tests which may be used in evidence at their trial for a drinking and driving offence.

Upon arrest, an individual is entitled to consult with a lawyer for the purpose of obtaining advice about their legal situation prior to providing a breath sample at the station. 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 if the roadside breath testing machine is not readily available and there will be a delay in getting the machine to the person under investigation. In some instances, the failure to permit consultation with a lawyer prior to providing the roadside sample may result in the exclusion of the sample and any subsequent evidence.

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 or delay in the testing procedures.

To learn more about the practical realities of facing an impaired driving charge, read our articles on 5 surprising truths about impaired driving charges in Toronto and 7 surprising truths about refusing a breath sample. You may also want to learn about what happens when police allege you were in "care and control" of a vehicle while impaired.

The Criminal Code provides a minimum fine of $1000 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 30 days in jail for a second conviction. A third or subsequent drinking and driving offence will carry a minimum punishment of 120 days in jail.

A drinking and driving conviction will also require a mandatory driving prohibition preventing a prohibited driver from driving anywhere in Canada for a minimum of one year. In Ontario, an eligible driver can shorten the time off the road through the province’s ignition interlock program, explained in the questions below. In addition to the penalties mandated under the Criminal Code, a conviction for DUI 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.

Often, yes. A first conviction for impaired driving, over 80 or refusing a breath sample brings a Criminal Code driving prohibition of at least one year and, in Ontario, a one-year licence suspension. Ontario’s Reduced Suspension with Ignition Interlock Conduct Review Program lets an eligible driver back on the road early, on condition that the vehicle they drive is fitted with an ignition interlock device: a breath tester wired to the ignition that has to be passed before the car will start and again at random while it is being driven.

A first offence falls into one of two streams. Stream A is for a driver who pleads guilty and is sentenced within 90 days of the offence date: the suspension can end after three months, followed by at least nine months with an interlock. Stream B covers every other first offender, including someone convicted after a trial: the suspension can end after six months, followed by at least 12 months with an interlock. Either way, the driver has to complete the Back on Track remedial program assessment and lease an approved interlock, and in Stream A the application has to be made within three months of sentencing.

The sentencing judge has the last word. The program is open only if the judge’s prohibition order under section 320.24(10) of the Criminal Code does not exclude the driver from it, and on a first offence the judge can also set a period that must pass before the driver may enter it. Whether to aim for Stream A is a decision to make before the plea, because the 90-day window closes quickly.

The program covers alcohol-impaired driving only. A driver is not eligible where the offence involved impairment by a drug, or by a drug combined with alcohol; where the offence caused bodily harm or death; where the judge’s order excludes them; where their licence was already subject to an ignition interlock condition on the day of the offence; or where their licence was suspended for driving while prohibited within the five years before (ten years on a second offence).

A refusal to provide a breath sample is treated in the same way as impaired driving and over 80, so a first refusal conviction can qualify. An accident on its own does not disqualify a driver as long as no one was hurt, and a high breath reading is not a bar in itself, although both can bear on whether the judge is prepared to allow early entry to the program.

Yes, in Stream D. A second conviction brings a Criminal Code prohibition of at least two years and, in Ontario, a three-year licence suspension. A driver who pleads guilty and is sentenced within 90 days of the offence date can return to driving after at least nine months, and then has to drive with an interlock for at least 18 months. The Criminal Code does not allow anyone into an interlock program on a second offence until at least three months after sentence, or longer if the judge orders it. A third conviction brings an indefinite suspension in Ontario.

The maximum punishments for operation while impaired, driving with a blood-alcohol level over the legal limit and failure to comply with a demand to provide a breath or blood sample are identical, though the minimum fines on a first offence differ. These are hybrid offences, and whether they are prosecuted by indictment or summary conviction there is a minimum fine of $1,000 for a first offence, 30 days imprisonment for a second offence and 120 days imprisonment for each subsequent offence. On a first offence the minimum fine rises to $1,500 where the reading is 120 to 159mg and $2,000 at 160mg or more, and a refusal carries a $2,000 minimum fine. If the Crown prosecutes by indictment, the maximum term of imprisonment is 10 years; on summary conviction the maximum is a $5,000 fine or two years less a day. If bodily harm is caused, no matter which offence is charged, the maximum term is 14 years' imprisonment when the Crown proceeds by indictment. If death is caused, the offence is indictable and the maximum term is life imprisonment.

A minimum fine consequence for any drinking and driving offence means that a person convicted of any of these offences will have a permanent criminal record. All drinking and driving offences carry a mandatory license suspension of at least 12 months.