DUI / Impaired Charges

A DUI refers to criminal driving charges that involve impairment, including Impaired Driving, Driving Over 80 and Refusal to Provide a Sample.

On December 18, 2018, Parliament introduced the new Bill C-46 and the law of impaired driving changed significantly. Here we discuss some of the most important introductions and amendments to the previous legislation:

Timing of the Offence
One of the most significant changes is regarding the timing of the offence. Previously, the Crown could only prove the offence of operating a vehicle “over 80” 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. Now, under the new legislation, the Crown can prove the offence has been committed where the individual has a blood alcohol concentration that is 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 has alcohol in their body 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 avoid a criminal conviction.

Minimum Fines
Mandatory minimum fines have also been affected: pleading guilty to an impaired charge where the readings of blood alcohol concentration are between 80mg and 119 mg and it is your first impaired conviction will result in a fine of $1,000.00, in addition to a criminal conviction on your record. Where readings are between 120mg and 159mg, the fine will be $1,500.00. Readings that are 160mg and above will result in a $2,000.00 fine. Failing or refusing to provide a breath sample will now result in a $2,000.00 instead of the previous $1,000.00 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.

Under the previous legislation, the impaired driving provisions related to impaired operation of motor vehicles, aircraft, vessels and railway equipment. The new provisions have now been amended so that all provisions read as impaired operation of a “conveyance”. The definition of “conveyance” includes motor vehicles, aircraft, vessels and railway equipment.

You can be charged with impaired operation of a conveyance in one of two ways: first, the officer will have observed your driving pattern, overall demeanour, physical appearance and whether there is a smell of alcohol on your breath. If, from their observations, the officer is satisfied that they have reasonable and probable grounds to believe your ability to operate a conveyance is impaired by alcohol, they can arrest you for impaired driving.

Second, an officer can demand that you provide a sample of your breath into an approved screening device for analysis. If you register a fail on that device, the officer will be satisfied that they have reasonable and probable grounds to believe your ability to operate a conveyance is impaired by alcohol and they can arrest you.
After you are arrested, the officer will take you back to the police detachment for further analysis to determine the level of alcohol concentration in our blood. You should be read your rights to contact counsel and remain silent upon arrest. The officer will ask you if you would like to contact a lawyer and should give you the opportunity to do so without delay if you say yes. Once you have spoken to a lawyer, you will be required to provide two samples of your breath to a qualified expert technician. If your blood alcohol concentration is higher than 80mg, you will also be charged with a second offence: operating a conveyance while your blood alcohol concentration was higher than 80 milligrams.

If you refuse to provide a sample, either on the approved screening device at the roadside or to the expert qualified technician, you will be charged with another criminal offence – that is, refusal to provide a sample.

Upon release, you will be given a number of forms, including upcoming appearance dates. You must attend on the mandated date for fingerprints. You must also attend on the mandated date for first appearance in court, and every court appearance date afterwards, unless you retain counsel to appear on your behalf. Your license will also be suspended, and your vehicle may be impounded for up to 30 days.

If you have been charged with any impaired offence, you should speak to one of our expert lawyers immediately. We will work to get your driving privileges reinstated as soon as possible.

If, based on your driving pattern, overall demeanour, physical coordination and/or smell of drugs (such as marijuana), the police suspect that there are drugs in your body, they may demand that you perform physical coordination tests at the roadside. A drug recognition expert (DRE) must conduct the physical coordination tests. A DRE is a member of the police required to have special training to properly assess whether a person is impaired by drugs. Physical coordination tests may include taking measurements of your pulse, blood pressure or temperature, as well as tests for balance and comprehension.

If, upon observing you conduct the physical coordination tests at the roadside, the police have reasonable grounds to believe that your ability to drive is impaired by drugs, or a combination of drugs and alcohol, they can arrest you for impaired driving. The police can also demand a sample of bodily fluids from you, such as urine, blood, or saliva in order to test for the presence of drugs in your body.

After you are arrested, the officer will take you back to the police detachment for further analysis to determine the level of alcohol concentration in our blood. You should be read your rights to contact counsel and remain silent upon arrest. The officer will ask you if you would like to contact a lawyer and should give you the opportunity to do so without delay if you say yes. Once you have spoken to a lawyer, you will be required to provide samples of the bodily fluid(s) requested.

If you refuse to submit to any of the tests that are demanded of you, you will be charged with another criminal offence – that is, either obstruction or refusal to provide a sample.

Upon release, you will be given a number of forms, including upcoming appearance dates. You must attend on the mandated date for fingerprints. You must also attend on the mandated date for first appearance in court, and every court appearance date afterwards, unless you retain counsel to appear on your behalf. Your license will also be suspended and your vehicle may be impounded for up to 30 days.

If you have been charged with any impaired offence, you should speak to one of our expert lawyers immediately. We will work to get your driving privileges reinstated as soon as possible.

If you have been charged with impaired driving by drugs or alcohol, driving while your blood alcohol concentration over the limit (“over 80”), or failing/refusing to provide a sample, you should speak to and hire a lawyer immediately. We offer a free consultation to discuss your case with you.

Ensure you write down everything you can remember – depending on how much information you can provide, we can work to identify any potential defences in your case. Potential defences include identity, failure to prove impairment beyond a reasonable doubt, and an application under the Charter of Rights and Freedoms. If police took samples of your breath and/or bodily fluid(s) without satisfying their legal obligations, the police will have violated your rights under the Charter of Rights and Freedoms. Any evidence, including these samples, can then be excluded from your trial, which can result in a total acquittal of your charges.

The Ignition Interlock Program requires that you install an Interlock Device into your vehicle for a period of time after conviction.

You are required to provide a breath sample into the device before operating your vehicle and if the device detects alcohol your vehicle will not start. The Alberta Transportation Safety Board monitors the results.

The police may charge you with Impaired Driving, Driving Over 80, or Refusal, even if you were not actually driving the vehicle. Often the police will allege that you were in Care and Control of the vehicle, meaning you were impaired while inside your vehicle but not necessarily while the vehicle was in motion. Roulston Criminal Defence is experienced at defending Care and Control DUI cases.