DRINKING AND DRIVING OFFENCES
This is one area of the criminal system where there the majority of accused persons are first time offenders and as such lack any experience or knowledge of the procedure that such a charge requires. There are a number of technicalities which may be available as a defense for an accused person.
Section 253(1) Criminal Code of Canada – Impaired Operation and Over 80 Milligrams
This section states:
Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,
(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(a) includes impairment by a combination of alcohol and a drug.
The Difference Between Impaired and Over 80
The distinction between the charges of impaired and over 80 is often not understood.
Impaired relates to a person’s ability to operate a vehicle and any impairment to that ability as a result of alcohol or drugs –however slightly it may be. For this charge to be laid, the police will usually observe on e or more of the following, slurred speech, incoherence, improper driving (such as swerving and not staying within the marked lane), reduced motor skills (such as an inability to remain balanced when standing), among others.
The legal blood alcohol concentration level for driving in Canada is under 80 milligrams of alcohol in 100 millilitres of blood. The police will lay a charge of over 80 when the amount of alcohol in the blood is “Over 80” milligrams.
It is common for a charge of impaired to be laid alongside a charge for over 80.
Care and Control
Being caught driving while impaired and/or over 80 is not the only way to attract liability under the Criminal Code of Canada. Section 253(1) also states that a person is liable if they “…[have] the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not”.
In reality, the police only need evidence of such care and control to lay a charge – this is common when a person is found in the front seat of a car while impaired and/or over 80 (i.e. sleeping while parked). The crown will have to prove that the person did something which risked the vehicle being put into motion or danger to other people or property arising from the vehicle.
It is important to realize that there can be circumstances where a person can be found to be in care and control while not even in the vehicle at the time.
As a first time offender, the possible consequences can include:
- A criminal record
- Minimum fine of $1000 or more
- Driving prohibition throughout Canada for 1 – 3 years (see section of Interlock Eligibility below)
- Installing an Ignition Control device
- Complete a Back on track course
- Very high insurance rates
Penalties for Impaired Driving and Over 80
Sections 255(1) and 259(1) of the Criminal Code of Canada state:
255 (1) Every one who commits an offence under section 253 or 254 is guilty of an indictable offence or an offence punishable on summary conviction and is liable,
(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,
(i) for a first offence, to a fine of not less than $1,000,
(ii) for a second offence, to imprisonment for not less than 30 days, and
(iii) for each subsequent offence, to imprisonment for not less than 120 days;
(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18 months.
Mandatory Order of Prohibition
259 (1) When an offender is convicted of an offence committed under section 253 or 254 or this section or discharged under section 730 of an offence committed under section 253 and, at the time the offence was committed or, in the case of an offence committed under section 254, within the three hours preceding that time, was operating or had the care or control of a motor vehicle, vessel or aircraft or of railway equipment or was assisting in the operation of an aircraft or of railway equipment, the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel or an aircraft or railway equipment, as the case may be,
(a) for a first offence, during a period of not more than three years plus any period to which the offender is sentenced to imprisonment, and not less than one year;
(b) for a second offence, during a period of not more than five years plus any period to which the offender is sentenced to imprisonment, and not less than two years; and
(c) for each subsequent offence, during a period of not less than three years plus any period to which the offender is sentenced to imprisonment.
Ignition Interlock Eligibility – Ontario
An Ignition Interlock system is designed to not allow the vehicle it is installed in, to start without the driver providing a suitable breath sample with zero blood alcohol content – if the machine detects alcohol, it will “lockout” the ignition and the vehicle will not start.
There are 2 streams available to a convicted person:
Stream A: If a first time offender pleads guilty within 90 days, from the date of being charged, they may qualify for the interlock program and be eligible to drive after a period of three months from the sentencing – if the offender qualifies. The ignition interlock must remain installed for a minimum of nine months, after which, an application can be made to have it removed.
Stream B: If a first time offender pleads guilty after 90 days (or found guilty at trial), from the date of being charged, there is a minimum wait period of six months before an ignition interlock system can be installed and the person allowed to drive again – if the offender qualifies.
A first time offender will be required to have the Interlock system for a minimum of 1 year (can apply after nine months if under stream A); a second time offender for a minimum of 3 years after serving a 3 year license suspension; and third time offenders will be required to maintain an Interlock system indefinitely after serving a minimum 10 year license suspension.
Pre-Eligibility: To be eligible for an Ignition Interlock system and have your license reinstated, a person convicted under the Criminal Code of Canada will be required to fulfill the following steps first:
- Serving a license suspension
- Paying the license reinstatement fee ($150) and the administrative monetary penalty (minimum fine of $1000 for a first time offender)
- Complete the Back on track program ($634)
For more information on the Ontario Ignition Interlock Program and a list of service providers for the installation of an Interlock system, please visit the Ministry of Transportation website at:
Back On Track Program:
In Ontario, a person convicted of drinking and driving offences is required to successfully complete the Back On Track program – Ontario’s Remedial Measures Program – at a cost of $634 – before their driving privileges will be reinstated.
Once a person is convicted of a drinking and driving offence, the Ministry of Transportation (MTO) will send a suspension notice which will include the program requirement and the length of license suspension.
If the Back On Track Program has not been completed at the conclusion of the license suspension term, the license suspension will be extended and driving privileges will not be reinstated until the program has been completed.
For more information on the Ontario Remedial Measures Program, please visit the Back On track website at:
Charged With a Drinking and Driving Offence?
This area of law is a complicated and technical and can seem like a minefield to an accused person. The resulting impact on a person’s life, after a conviction for a drinking and driving offence, can have devastating effects financially, on family life, the ability to retain employment, to name a few. It is important you hire an experienced lawyer to help explore all possible technical and legal defenses which may be available to you.
If you require a lawyer, please call us at 905-497-7200