The Act has not changed how police officers are entitled to investigate impaired-driving related offences. If you are driving a vehicle, or are 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, without any suspicion that you have alcohol in your body. This type of demand is known as Mandatory Alcohol Screening (s. 320.27(2) of the Criminal Code). If an officer does not have an ASD with them (i.e. the officer needs to call for backup to obtain one), they may still demand that you provide a sample of your breath at the roadside, however it may be argued that the police must have a reasonable suspicion that you have alcohol in your body and that you have operated a motor vehicle within the past three hours (s. 320.27(1)(b) of the Criminal Code). The circumstances and changes is law will need to be assessed by your lawyers at Roulston Urquhart to determine if this is a viable argument.

You must comply with a police officer’s demand for a sample of your breath. If you refuse to comply, you may be charged with a separate criminal offence of refusal to provide a breath sample (s. 320.15(1) of the Criminal Code). If you attempt to provide a sample into the ASD, but fail to do so, you may also be charged with the same criminal offence but for failing to provide a breath sample, unless you have a reasonable excuse not to provide a sample (such as a medical diagnosis, which renders you unable to provide a breath sample into the ASD). 

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 do provide a sample of breath into the ASD, the police officer will wait to receive the test result. If the test shows a “FAIL”, then the presumption is that you have a blood alcohol content exceeding 80 mg of alcohol in 100 ml of blood. 

When an officer has reasonable grounds to believe that you have committed an impaired offence, they can arrest you and bring you back to the detachment to provide further samples of your breath into an intoxilyzer. In cases where an officer received a “fail” result on an ASD, the officer would presumptively have reasonable grounds to believe you had over 80 mg of alcohol in 100ml of your blood. The officer could then arrest you for impaired driving, advise you of your right to counsel, caution you that anything you say can be used as evidence against you, and bring you back to the detachment to provide further samples of your breath. As a result, you would:

• Be charged with criminal offences related to impaired driving and would be required to go to court;
• Receive a 3-day vehicle seizure;
• Be issued an administrative penalty called the Alberta Administrative License Suspension (AALS); 
• Receive an immediate 15-month suspension; and
• Be prohibited from driving for 3 months. You could drive again after 3 months if you installed an ignition interlock device for the remaining 12 months.

If you wanted to appeal the 15-month suspension of your driver’s license, you would have 30 days obtain, complete and file a notice of appeal with the Alberta Traffic Safety Board. If you did not file your notice of appeal within 30 days of receiving the suspension, your license would be suspended automatically for the full 15 months. After the first 90 days of your suspension elapsed, you would not be able to drive without having a Ignition Interlock device for the remaining 12 months.

Now, under Bill 21, where a peace officer has reasonable grounds to believe that you either:

• Operated a motor vehicle while being impaired, to any degree, by alcohol, a drug, or a combination of the two;
• Have a blood alcohol content that is equal to or exceed 80 mg of alcohol in 100ml of blood, within 2 hours after you stopped operating a motor vehicle;
• Have a blood drug concentration that is equal to or exceeds the blood drug concentration for the specific drug as per the Criminal Code, within 2 hours after ceasing to operate a motor vehicle;
• Have a blood alcohol concentration AND a blood drug concentration that is equal to or exceeds the respective concentration (for instances where alcohol and drugs are combined), Within 2 hours after ceasing to operate a motor vehicle, has; OR
• Knowing a demand has been made, you either failed or refused to comply with a demand for a sample of your breath, without a reasonable excuse to do so, either at the roadside or at the detachment

The following administrative penalties will apply to first-time offenders: 

• If you are a first-time offender for an impaired-related offence, you will NOT be charged criminally;
• 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).

Under this new legislation, you now have only 7 days to dispute (“review”) your notice of administrative penalty that is given to you by the officer. The “administrative penalty” includes the $1,000 fine, and any other administrative consequence, including the 15-month driver’s license suspension. You must also pay a fee within 7 days of filing your application to review the administrative penalty.

Once you have filed the notice of review of your administrative penalty, the Alberta Transportation Board will provide you with a date that the review will be heard, which will be held within 21 days from the date of the notice of administrative penalty (which will typically be the date you were arrested). 

If you do not file an application to review within 7 days of the police officer providing you notice of your administrative penalty, and you are a first-time offender for an impaired offence, your license will automatically be suspended for 15 months from the date of receiving the penalty. You will not be allowed to drive whatsoever for the first 90 days of the suspension. After the first 90 days of your suspension have elapsed, you will only be able to drive if you have the Ignition Interlock device installed in your vehicle. It is extremely important that you contact a lawyer as soon as you are arrested for an impaired offence to ensure your notice of review is filed within 7 days in order to appeal.

If there are exceptional circumstances as to why you did not file your application to review your administrative penalty, you may submit a request for a late review of the penalty to the Director of the Alberta Transportation and Safety Board. The Director will consider your request and determine whether there were exceptional circumstances and decide whether they will allow you to review the penalty.

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.

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.