Impaired Driving & Other Driving Offences
Impaired Driving & Other Driving Offences
Alcohol and drug related driving offences are some of the most common criminal charges in Alberta. The law in this area is particularly complex, and alcohol and drug related driving offences are considered serious.
If you have been charged with impaired driving offences, or other related driving offences, you will be in good hands with me: I have the skill and experience to obtain excellent results for my clients, including a finding of not guilty, or getting the charges withdrawn.
With that said, the law in this area is particularly complex, and alcohol and drug related driving offences are considered serious. A conviction often carries a social stigma, results in a lengthy suspension of your license, and can cost you well over a thousand dollars in fines. It takes assertive, effective advocacy to mount a successful defence.
Without accurate information, it's hard for you to protect your rights and interests. Here are some of the essential things you need to know about alcohol and drug related driving offences:
Alcohol and Drug Related Driving Offences
At the outset, it is important to point out that in Canada, impaired driving or driving under the influence (often called a DUI) are essentially catch-all terms. What surprises many people is that there are actually several specific offences in the Criminal Code that relate to alcohol and drug impaired driving. The Criminal Code provisions were overhauled in late 2018, and there have been some important and consequential changes to these laws.
The offences are now broken down into five main categories relating to alcohol and drugs when “operating a conveyance” (i.e. operating a motor vehicle):
1. Impaired Driving
This offence refers to operating a motor vehicle while a person’s ability to operate is impaired “to any degree” by alcohol or a drug (or both). If you have been charged with an impaired driving offence, you can only be found guilty if police prove you were “impaired” as that term is defined by law.
The words “to any degree” were added into the Criminal Code provision in the 2018 Parliament changes. These recent changes in the law effectively have made it easier for police to charge a person with impaired driving. Now, so long as a police officer believes on reasonable grounds that you are impaired to any degree, they can charge you with this offence.
To prove impairment, police use a number of investigative methods. Police may ask you to blow into a roadside machine called an Approved Screening Device, or ASD. Police may also prove impairment through indicators such as erratic driving patterns or other visual indications. For example, the police who stopped you may notice the smell of alcohol, bloodshot eyes, or slurred speech. They may claim that you were stumbling while walking or that you have admitted to recently consuming alcohol.
In many instances the police will make an arrest without truly having enough evidence to justify the charge. It is my job to dissect the evidence the crown has against you and effectively cross-examine the officer who charged you. In many of my cases, I am successful in obtaining a finding of not guilty for my clients.
2. Driving with a Blood Alcohol Level Equal to or Over the Legal Limit
This offence relates to operating a motor vehicle with a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood within two hours of ceasing to drive. In the usual course of this charge being laid, you will have given a breath sample at a police station, usually after being stopped while driving. The device that police use enable them to find out exactly how much alcohol you have in your blood stream.
Two important changes have come into effect for this offence since 2018. Previously, your blood alcohol level needed to exceed 80 mg of alcohol in 100 mL of blood. Now, you must have under 80 mg of alcohol in 100 mL of your blood to not break the law for this offence. By changing this wording slightly, Parliament has effectively lowered the legal limit of alcohol you can have in your system while driving.
In addition, Parliament added the words in the provision to end with “within two hours of ceasing to drive”. These words have caused much confusion about when the police may ask for a sample of your breath.
As the law stands right now, if you have been drinking and police suspect you were driving within the previous two hours, they could demand a sample of your breath, regardless of whether you had alcohol before or after you were driving.
These changes to the impaired driving offence provisions have made these charges particularly complex. If you are charged with this offence, give me a call. I will help you to understand the charge you are facing, and I will analyze the evidence the crown has against you to explore every avenue of defence.
3. Drug-Impaired Driving
Even with Canada’s legalization of cannabis (marijuana) in late 2018, it is still an offence to drive while impaired by drugs. The Criminal Code has been amended to introduce three new offences related to drug-impaired driving, which vary in severity and penalty according to the level of cannabis that is found in your body. The new provisions were brought into force in late 2018 to help regulate the legalization of cannabis in Canada, and to catch people who drive while impaired by drugs. The effective prosecution of these new offences is supported by new methods of drug screening, and procedures relating to the admissibility of evidence.
This new offence means that you may be charged with a drug-impaired driving offence if you are found to be operating a motor vehicle with a blood drug concentration that is equal to or exceeds an amount prescribed by regulation, within two hours of ceasing to drive.
For this offence, the levels of THC (a chemical found in cannabis) found in the body dictate how the crown will proceed with the offence. Depending on the levels, you may be subject to one of the following three offences:
- A straight summary conviction offence – where you have between 2 ng and less than 5 ng of THC per ml of blood in the body.
- A hybrid offence - where you have 5 ng or more of THC per ml of blood in the body.
- A hybrid offence - where you have a combination of 2.5 ng of THC per ml of blood or more, with a blood alcohol concentration of 50 mg of alcohol per 100 ml of blood or more in the body.
For drugs other than cannabis, such as cocaine, you are not allowed to have any amount in your body before being charged with this offence.
In some jurisdictions in Alberta, you may be asked to provide a sample of your saliva, which will then be tested through a machine to find the level of drugs in your body. It is important to note that you can still be charged with drug-impaired driving despite the non-existence of THC in your body.
If the police do not have this machine, they may ask you to do a “field sobriety test”. They will make you perform several physical tests, such as following a pen with your eyes, or walking in a straight line, to determine if they believe you are impaired.
Because this offence is new, there will be many potential lines of defence for you. For example, depending how the police decided to test your sobriety, there may be issues that are in contravention of your rights under the Charter of Rights and Freedoms. Likewise, the accuracy and reliability of any drug-testing machine, or field sobriety test is often a triable issue.
These types of charges are particularly complex. Because of the uncertainty in the law and the intricate defences, it is important to retain the services of an experience criminal lawyer like myself upon being charged.
4. Driving with a Blood Alcohol and Blood Drug Concentration Over the Legal Limit
This offence refers to operating a motor vehicle with a blood alcohol concentration and blood drug concentration that are equal to or exceed those prescribed by the regulation, within two hours of ceasing to drive.
Essentially, Parliament is trying to prevent people from driving while they have been both drinking and doing drugs. You may be charged with this offence if you are found to have:
- 50 mg of alcohol in 100 mL of blood plus equal or over 2.5 ng of THC in your system.
If you have other drugs in your system, the limits may change or be zero for drugs.
This provision is complex, but depending how the police proceed with their investigation, there may be several avenues where I can mount a thorough defence for you. As with all impaired driving investigations, there are often complex Charter arguments to be made on your behalf. Call me to chat about your options.
5. Failing or Refusing to Comply with a Demand
This offence occurs when a person has been given a breath demand by a police officer to blow into a breath machine, and the person fails or refuses to comply with that demand.
Oftentimes these charges arise because the person is confused by the demand or does not fully understand what their rights are. If you have a language barrier, this might further complicate your understanding when an officer is demanding you to do something. Sometimes you may be charged with a refusal despite making many attempts to follow a demand and blow into a breath machine.
While a charge of refusal can be difficult to overcome, there will likely be defences available for you to fight the charge at a trial. For example, if you have a respiratory condition and have trouble breathing, or if you have hearing or language issues. Alternatively, you may be able to argue that you were not intending to refuse.
Defending these types of charges requires specialized knowledge and skilled cross-examination. I have been successful with many clients in obtaining a withdraw of the charge or a finding of not guilty.
Mandatory Roadside Screening
Since late 2018, Canadian citizens are also now subject to mandatory roadside screening. This has effectively eliminated the requirement that police meet a threshold of suspicion that you are an impaired driver before requiring you to blow into an ASD.
Now police can demand that you provide a sample of your breath without them having any suspicion at all that you are driving while impaired. This is legal so long as the Police have pulled you over for a legal purpose (for example, to check your registration or because you failed to put on your blinker when changing lanes) and as long as they have an ASD in their vehicle at the time they pull you over.
Defence of Impaired Driving Offences
Since the new driving laws have come into effect, it is especially important to get experienced, skillful legal representation. I will vigorously advocate for you and ensure that every avenue of defence has been explored!
This will include examining all technical evidence (including the accuracy of breath sample collection devices), witness testimony, or procedural aspects including whether the samples were obtained in accordance with your Charter rights.These newly revamped offences under the Criminal Code are accompanied by certain exculpatory provisions, that can be used in certain circumstances.
For example, you can avoid a conviction under one of the “within two hours of driving” provisions by proving all of the following:
- That you consumed alcohol or the drug, or a combination of the two, after ceasing to drive.
- After ceasing to operate the vehicle, you had no reasonable expectation that you will be required to provide a sample of breath, blood, or a bodily substance.
- Your alcohol consumption is consistent with a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood at the time you were driving.
The exceptions are available in the right circumstances and will involve obtaining the evidence of an expert.
There will also be other defences available to you, depending on the specific circumstances of your case. Oftentimes for impaired driving offences, there may also be specific Charter issues or breaches that may provide a defence – for example, the legality of the search and seizure, an arbitrary detention, or whether your right to counsel was given.
My job as your lawyer will be to thoroughly review your case and argue all available defences!
Potential Penalties – DUI Offences
Impaired driving charges are very common and make up a large number of the criminal matters that work their way through the Canadian justice system each year.
The new Criminal Code provisions that came into force in late 2018 have also strengthened police and crown powers to investigate, charge, and sentence Canadians for impaired driving. There are newly imposed or increased mandatory minimum penalties for some impaired offences. There are also higher maximum penalties for certain impaired driving offences, with penalties correlated to the level of blood-alcohol or drug concentration in the body.
If you are convicted of or plead guilty to an alcohol or drug related offence, you will receive a criminal record, an automatic 1-year license prohibition, and a minimum fine of $1000. Depending on the scenario of your case, you may face an increased fine if the facts of your circumstances were aggravating, for example, if someone was nearly hurt.
For the offence of Failing or Refusal to Comply with a demand, the fine for a first offence is a minimum of $2000.
There are also circumstances where a fine may be automatically increased. For example, if your blood alcohol concentration exceeds certain amounts, you may be facing a minimum $1,500 or $2,000 fine upon a finding of guilt or upon a guilty plea being entered.
You will also be subject to certain provisions under the Alberta Transportation Safety Board prior to the re-instatement of your license, such as driving with an ignition interlock device in your vehicle for 1-year.
If you are convicted of a second alcohol or drug related driving offence, you may be sentenced to a term of 30 days imprisonment if the crown proceeds by way of greater punishment. After that, subsequent offences result in 120 days’ imprisonment, again, if the crown elects to proceed by way of greater punishment. You will also face a minimum 1-year driving prohibition and a fine with each conviction. However, it is important to know that generally if your previous related offence was longer than 5 years ago, the crown will only seek the minimum fine and driving prohibition, and not ask for jail time.
Call me, Susan Karpa, an experienced criminal lawyer.
These harsher penalties reflect the zero-tolerance approach in our Canadian society to these types of offences. This is why the help of a seasoned criminal lawyer like me is vital. I can work towards trying to avoid a conviction for you altogether.
The provisions of the Criminal Code relating to alcohol and drug related driving are complex. These kinds of cases are serious and intricate, and involve many technical aspects relating to investigation and prosecution.
It is imperative that you get advice and representation by a lawyer who is not only familiar with these kinds of cases, but also knows how to successfully prepare for and defend them. As with all crimes, the successful prosecution of these cases requires the crown to meet the burden of proof beyond a reasonable doubt.
Call my office and I will review your case with you and ensure that I explore all avenues of defence available to you. My ultimate goal is to try to have the charges against you dropped!