DUI/Impaired Driving Charges

Bill 21, the Provincial Administrative Penalties Act, changed how impaired drivers may be penalized. The purpose of this Act is to adopt a simplified form of enforcing administrative rather than criminal penalties for offences related to impaired driving charges. Under this act, police officers in Alberta can issue penalties through a new online traffic system, rather than charging first time offenders of impaired driving with a criminal offence. Roulston Urquhart Criminal Defence remains up to date on all recent developments in this area of law and can thoroughly explain your options when facing an impaired driving charge.

The Provincial Administrative Penalties Act has also changed how police officers are entitled to investigate impaired-driving related offences. If you are driving a vehicle, or in care and control of a vehicle, an investigating officer may demand that you provide a sample of your breath at the roadside. If the officer has an approved screening device (also known as a roadside screening device or an “ASD”) in their vehicle or on their person, they can demand that you provide a sample of your breath immediately. This type of demand is known as Mandatory Alcohol Screening (s. 320.27(2) of the Criminal Code).

Your lawyer at Roulston Urqhart will determine whether the police had reasonable suspicion of operation of a motor vehicle within the past 3 hours since alcohol consumption (s. 320.27(1)(b) of the Criminal Code).

You must comply with a police officer’s demand for a sample of your breath. If you refuse to cooperate, you may be charged with a separate criminal offence of refusal to provide a breath sample (s. 320.15(1) of the Criminal Code). In order to avoid this charge, you must have a reasonable excuse for your inability to provide a breath sample, such as a medical diagnosis.

It is a criminal offence to have equal to or greater than 80mg of alcohol in 100ml of your blood when you are driving or in care and control of a motor vehicle (s. 320.14(1)(b)). Once you provide a breath sample into the ASD, the police officer immediately receives the result. If the test shows a “FAIL”, then it is presumed your blood alcohol content is greater than 80mg per 100ml.

If an officer has reasonable grounds to charge you with impaired driving, you will be arrested and brought to a police detachment. You will be read your rights according to the Canadian Charter of Rights and Freedoms and be advised of your right to legal counsel. At the police station, you may be asked to provide an additional breath sample through an intoxilyzer device, similar to a breathalyzer.

In 2020, Alberta’s laws on impaired driving changed. If you are a first-time offender, you may receive an administrative sanction rather than a criminal charge. This is known as the Immediate Roadside Sanction (“IRS”). It includes:

• An administrative penalty called the Alberta Administrative License Suspension (AALS);
• A $1,000.00 fine, plus a $200.00 Victim Fine Surcharge;
• Immediate 15-month suspension; and
• 3 month driving prohibition. After the initial three month period, you may install an ignition interlock device to resume driving for the remaining 12 months. This Ignition Interlock device is mandatory if you wish to resume driving for the remaining 12 months.

To appeal the 15-month suspension of your driver’s license, a strict 7 day timeline is enforced. Within a week, a notice of Appeal with the Alberta Traffic Safety Board must be obtained, completed and filed. If the notice of appeal is not filed within 7 days of receiving the suspension, your license will be automatically suspended for the full 15 months. You must also pay a fee within 7 days of filing your application.

Once the notice to review has been filed, the Alberta Transportation Board will provide a date for the review to be heard. This will be within 21 days from the notice of administrative penalty date, typically the date of arrest.

If there are exceptional circumstances as to why an application to review your administrative penalty was not filed within the necessary timeline, you may submit a request for late review of the penalty to the Director of the Alberta Transportation and Safety Board. The Director will consider your request and determine whether exceptional circumstances may be claimed and if the penalty may be reviewed.

Under Bill 21, the reasonable grounds for an officer to place a charge may include:

• Operation of a motor vehicle while impaired, to any degree, by alcohol, drug, or a combination of the two;
• A blood alcohol level content that is equal to or exceeding 80 mg of alcohol in 100ml of blood, within 2 hours after you stopped operating a motor vehicle;
• A blood drug concentration (BDC) that is equal to or exceeds the BDC for the specific drug as per the Criminal Code, within 2 hours after ceasing to operate a motor vehicle;
• A BDC that is equal to or exceeds the respective concentration when drugs and alcohol are combined, within 2 hours after ceasing to operate a motor vehicle;
• After a demand for a breath sample has been made, you either failed or refused to comply without a reasonable excuse to do so, either at the roadside or at the detachment.

Offenders who commit more serious offences, such as impaired driving causing bodily harm or causing death, or repeat offenders, will face more serious consequences. In both cases, the offender will still be charged with criminal offences and will need to go to court.

For offenders who have committed offences involving bodily harm or death, and you are a first-time offender, the same administrative sanctions described above will apply. In addition to criminal charges, you will:

• Receive a 30-day vehicle seizure;
• Be issued a $1,000 fine;
• Be required to complete mandatory impaired driving education;
• Receive an immediate 15-month driver’s license suspension;
• Be prohibited from driving for 3 months. You can drive again after 3 months if you install an ignition interlock device for the remaining 12 months.
• If you choose not to participate in the Ignition Interlock Program, you will remain suspended with no ability to drive for the full suspension term (15 months).

If you commit a second offence related to impaired driving, you will face the following administrative penalties, in addition to criminal charges:

• You will be suspended for an immediate period of 90 days;
• Your vehicle will be seized for 30 days by the peace officer;
• You will receive a fine of up to $2,000;
• You will be required to complete mandatory impaired driving education; and
• Following the expiration of the first 90 days suspension, you will be suspended for a further 36 months. You can apply to install the Ignition Interlock device in your vehicle, but it must remain in your vehicle for the remaining 36 months in order for you to drive.

If you commit a third, or any subsequent offence related to impaired driving, you will face the following administrative penalties, in addition to criminal charges:

• You will be suspended for an immediate period of 90 days;
• Your vehicle will be seized for 30 days by the peace officer;
• You will receive a fine up to $2,000;
• You will be required to complete mandatory impaired driving education; and
• Following the expiration of the first 90 days suspension, you will be suspended for life. You can apply to install the Ignition Interlock device in your vehicle after the first 90 days has passed, but it must remain in your vehicle for life in order for you to drive.

Parliament introduced Bill C-46 on December 18, 2018. These amendments to the previous legislation significantly changed the law concerning impaired driving.

Timing of the Offence
One of the most significant changes regards the timing of the offence. Previously, the Crown could only prove the offence of operating a vehicle while impaired by establishing that the accused had a blood alcohol concentration of over 80mg in 100ml blood at the time of driving or in care or control of the vehicle. Under the new legislation, the Crown can prove the offence if it can be shown that an individual had a blood alcohol concentration over 80mg within two hours of the time of driving.

Random Breath Testing
Another significant change is the introduction of random breath testing. Under the new Mandatory Alcohol Screening provision (s. 320.27(2) of the Criminal Code), an officer no longer requires reasonable suspicion that an accused is impaired by alcohol to demand a sample of their breath.

No Curative Discharges
The new provisions also removed the availability of a curative discharge. Previously, an accused who suffered from alcoholism and required curative treatment was able to receive a curative discharge and evade a criminal conviction. With this recent change, a criminal record will not be avoided. Rather, upon the Crown’s agreement, an individual may postpone sentencing until they are able attend a government approved treatment program.

Minimum Fines
Mandatory minimum fines have also been affected. A penalty of $1000 and a criminal conviction will be issued for a guilty plea to a first offence where the individuals blood alcohol concentration was between 80 and 119 mg. If the blood alcohol readings are between 120 and 159mg, the fine will be $1,500. Readings that are 160mg and above, will result in a $2,000 fine. Failing or refusing to provide a breath sample will now result in a $2,000 fine.

Serious Immigration Consequences
Under the previous legislation, the maximum sentence you could receive for impaired driving was 5 years imprisonment. Under the new section 320.19(1) of the Criminal Code, the maximum sentence for impaired driving is 10 years imprisonment.

By increasing the punishment to a maximum of 10 years, the offence of impaired driving is now considered “serious criminality” under s. 36 of the Immigration and Refugee Protection Act. If you are in Canada as a Visitor, a Foreign National, or even a Permanent Resident, a conviction of impaired driving will result in your inadmissibility to Canada, and you may be deported from the country.

The new provisions have now been amended to read as impaired operation of a “conveyance”. The definition of “conveyance” includes motor vehicles, aircraft, vessels, and railway equipment.

Police may suspect drug impairment and demand a roadside physical coordination test based on your driving pattern, overall demeanor, physical coordination or the suspected odor of drugs such as marijuana. A drug recognition expert (DRE) must conduct the physical coordination test. A DRE is a member of the police that has completed special training to properly assess potential drug impairment. A physical coordination test may include measurement of your pulse, blood pressure or temperature along with balance and comprehension tests.

An officer may charge you with impaired driving based on the physical coordination tests. A bodily fluid sample may also be demanded to test for the presence of drugs in your urine, blood or saliva.

Potential defences may include failure to prove impairment beyond a reasonable doubt and applications under the Charter of Rights and Freedoms. Your lawyer at Roulston Urquhart will determine if your rights were violated when the police collected breath or bodily fluid samples. If so, these samples may be excluded from trial, weakening the case against you.

We offer a free consultation with new clients to discuss your case and determine your options moving forward.

This device is part of the Ignition Interlock Program. It is installed in your vehicle as part of your conditions. To operate your vehicle, you must provide a breath sample. If the device detects alcohol, it will not start. The results are monitored by the Alberta Transportation Safety Board.

You may be charged with Impaired Driving, Driving over 80 or Refusal to Provide a Sample even if you were not actively driving the vehicle at the time of investigation. You may be considered to have care and control of a vehicle if you are inside but the vehicle is not in motion. Roulston Urquhart Criminal Defence is very experienced and knowledgeable in defending complex DUI cases alleging care and control.