Ron Jourard
Criminal Lawyer, Toronto, Ontario
www.defencelaw.com
Tel. (416) 398-6685
Toll free (Canada and U.S.) 1-888-257-0002
Email: jourard@defencelaw.com

Drinking and Driving

By Ron Jourard, B.A., M.A., LL.B.

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Overview

If you have been charged with drinking and driving, you may have a defence. Under Canadian law, the consequences of a conviction may be both costly and devastating. Do not plead guilty before you consult a criminal lawyer as you may have a defence.

A conviction for impaired driving, drive over 80, care or control, refuse breath sample, or refuse to do tests or provide a bodily fluid sample to determine if your ability to drive is impaired by a drug means the suspension of your driver's licence, a criminal record and a huge hike in your motor vehicle insurance premiums. If your job involves driving, you may lose your livelihood.

Consequences of conviction

Penalties

If you've been charged with drinking and driving, that is, over 80, impaired operation or care or control of a motor vehicle, or refuse to provide a suitable breath sample, you are liable to the following penalties upon conviction:

United States and foreign residents

Under reciprocity accords, a New York State or Michigan driver's licence will be suspended following a conviction in Ontario for drinking and driving in Ontario.

Authorities in other states could be informed if drinking and driving charges are laid in Canada against the holder of a U.S. driver's licence. For example, in Ontario, police could seize the driver's licence of an American charged with driving with excess alcohol or refusal to provide a breath sample. On receiving the licence, the Ontario Ministry of Transportation could return it to the department of transportation for the issuing state and advise it of the reason for the seizure.

If you are a U.S. citizen or visitor to Canada convicted of a drinking and driving offence in Canada, see information on immigration impact.

Criminal record

If you are convicted of drinking and driving, your fingerprints and photographs will be retained by the RCMP in Ottawa. And the next time you're pulled, your record will show up when police run a routine check.

A conviction also means you will have a criminal record which could hurt your employment and restrict your ability to travel. However, it should not prevent you from visiting the United States as generally it is not a crime of moral turpitude under U.S. immigration law.

Travel to the United States

If you are planning a trip to the U.S., as a precaution carry a certified true copy of the information (court document) relating to the conviction and a copy of the Criminal Code section under which you were convicted.

It is wise also to have a letter from your doctor stating you are not addicted to alcohol or drugs. If available, bring a certified true transcript of the evidence underlying your conviction as well.

Insurance premiums

Your motor vehicle insurance rates will skyrocket after a conviction. In Ontario, you will probably be required to insure with Facility Association, which insures high-risk drivers and exacts high premiums. For each of the three years following your conviction, Facility Association will levy a 100 per cent surcharge atop your premiums. It will impose more surcharges, up to a maximum of 250 per cent for other convictions relating to the same incident such as careless driving or fail to remain at the scene of an accident. Each insurance company has its own conviction surcharge schedule.

Administrative driver's licence suspension

Ontario drivers who register a blood-alcohol reading of over 80 mgs. in 100 ml. of blood or refuse or fail to provide a breath sample have their licence immediately suspended for 90 days. Other provinces have similar schemes. The 90-day suspension is not a criminal penalty; no finding of guilt is required before it takes effect.

In Ontario, the Ministry of Transportation mails you a reinstatement notice eight days before the end of the suspension period. To get your licence back you must attend at a Ministry of Transportation office with two pieces of government-issued ID to confirm your identity and pay a $150 "monetary penalty."

The suspension may lead to imposition of an insurance surcharge. In Ontario, if you successfully defend the charge that led to the suspension, provide a certified copy of the information (charging document) to your insurance company. Upon renewal of your policy, the surcharge should be removed.

Licence reinstatement

In Ontario, persons convicted of drinking and driving offences must complete a remedial program at a cost of $578 plus GST before licence reinstatement.

First offenders and repeat offenders (persons with a prior conviction in the last 10 years) must be assessed and finish an 8-hour education program or 16 hours of treatment. A follow-up interview is conducted six months later, with the result that the program takes about eight months to complete. You are advised to commence the program early to ensure licence reinstatement without delay upon lapse of your licence suspension and driving prohibition.

If you have completed the remedial program and paid the $150 reinstatement fee, the Ministry of Transportation mails you a new licence at the end of the suspension period.

For more information see Back on Track.

Ignition interlock

Anyone convicted in Ontario of a drinking and driving offence must install an ignition interlock in their vehicle once their driving privileges are restored. Before starting the car, the driver must blow into the device. If an impermissible level of alcohol is detected, the car will not start.

Persons charged with a first offence in Ontario who plead guilty within 90 days of being charged may be able to drive after three months with an interlock device and apply to remove it after a minimum of nine months. If they are sentenced more than 90 days after being charged, they must wait at least six months before being able to drive with an interlock and can apply for its removal after waiting at least one year. For more information on the interlock program see Suspensions cut for impaired drivers.

Different offences

Over 80

Over 80 refers to the amount of alcohol in your blood as measured by a breath or blood test. The legal blood alcohol level in Canada is 80 milligrams of alcohol in 100 millilitres of blood. (In most U.S. states it's 100 mgs.; in Sweden it's 20 mgs.)

Impaired driving

A charge of impaired operation of a motor vehicle may be laid if police believe your ability to drive a motor vehicle is impaired - however slightly - as a result of drinking (or drugs). Typically, this charge is laid if there is evidence of bad driving, slurred speech, imbalance, and/or fumbling.

Toxicology report

In some cases, where there is weak evidence of impairment, the Crown might secure a report from a toxicologist establishing that your ability to operate a motor vehicle would be impaired at any blood alcohol level above the legal limit.

Refuse sample

A charge of refuse to provide a suitable sample of breath ("refuse sample" for short) is laid after you fail or refuse without reasonable excuse to provide a breath sample either into a roadside screening device or a breathalyzer instrument. The roadside screening device test is administered to determine whether you are over the legal limit; if you register a fail on the device, you will be asked to undergo a breath test which measures the amount of alcohol in your blood.

Often a charge of Impaired Operation is laid along with a charge of Drive Over 80 or Refuse Sample.

Care or control

You do not have to be caught driving to be charged with Over 80 or Impaired. It's enough if you're in "care or control." You are presumed to be in care or control if police find you sitting in the driver's seat.

However, you may rebut the presumption if your intention on entering the driver's seat was not to drive (e.g., to sleep). If you rebut the presumption, you might still be found guilty if the Crown can show that you performed some act or acts involving the vehicle or its fittings, or conduct associated with the vehicle, that involve the risk of putting it in motion or some other danger to persons or property arising from the vehicle.

Realistic risk of danger

The Supreme Court of Canada in a 2012 ruling held that the risk of danger must be realistic and not just theoretically possible. The court noted: "In the absence of evidence to the contrary, a realistic risk of danger will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion."

Beware: you may be found in care or control even if you are outside your vehicle.

Common Defences

Overview

Numerous defences can be raised on a charge of Over 80. A few of the most common are described below and on the pages that follow. Availability of any defence depends on the facts of your case.

Breath readings unreliable

Where the first breath test is taken within two hours of the time of the alleged driving or care or control, you can win an acquittal by raising a reasonable doubt about the reliability of the breath test results. Only evidence that the breath instrument was malfunctioning or operated improperly is capable of raising such a doubt. Even if you produce such evidence (for example, by calling an expert on breath instruments), the Crown could still secure a conviction by showing that despite the defect, your blood alcohol level would still have been above the legal limit.

First test outside 2 hours

If the first breath test was taken more than two hours after the time of the alleged driving or care or control, you may be able to raise a reasonable doubt about the reliability of the breath test results by showing that your blood alcohol level at that time was within the legal limit. To mount such a defence, you will need a toxicologist (an expert on the body's absorption and elimination of alcohol) or a report from one. The toxicologist can calculate your BAC based on your weight and the amount and time of alcohol consumption. (Hiring a toxicologist for trial is costly; a report can be obtained for less or from the Centre of Forensic Sciences in Toronto for free.)

Unless the judge finds the evidence about how much you drank unreliable, your testimony will throw doubt on the readings obtained by police. In assessing your evidence about alcohol consumption, the judge cannot take into account your breath test results, however high. This follows from a December 2005 decision of the Supreme Court of Canada (see paragraph 43).

Were you over the limit?

Were you over the legal limit at the time of the alleged offence? Use the Calculator to approximate your blood alcohol level.

On an Over 80 charge, the Crown must prove your BAC was over the legal limit at the time of driving. But because police do the breath instrument test only afterward, the Criminal Code presumes the result - the lower of the two readings obtained from the breath samples - reflects your BAC at the time you are stopped.

The presumption applies only if the tests are started within two hours. If the first test is carried out more than two hours after the time of driving (or care or control), the Crown will need a toxicologist to calculate your BAC at that time. If the Crown fails to produce evidence from a toxicologist at your trial, the Over 80 charge cannot be proven.

Last drink defence

If the breath instrument readings are slightly over 80 and you guzzled a drink just before being stopped, you may have a "last drink" defence. As it takes time for alcohol to enter the bloodstream, a toxicologist may be able to testify you were under 80 at the time of the stop because the alcohol had not yet been fully absorbed. The last drink defence is very effective because you do not have to question the reliability of the breath instrument results. However, your evidence must also show that the breath instrument results accurately reflect your BAC at the time of the tests.

Charter defences

Overview

Often a drinking and driving charge can be defended by showing that police or other authorities violated your rights under the Canadian Charter of Rights and Freedoms. A drinking and driving investigation where breath tests are conducted can engage the following constitutional rights:

If one or more of these rights is breached before the breath tests are completed, it may be possible to exclude the test results and secure your acquittal on a charge of over 80. Similarly, evidence of impairment may be excluded and a charge of impaired driving dismissed if a breach occurs before the observations of impairment are made. A charge of refuse sample may be dismissed if a Charter violation precedes the refusal.

Right not to be arbitrarily detained

When police pull you over a detention occurs. Under Section 9 of the Charter, police can lawfully stop you only if they have "articulable cause." That is, there must be objectively discernible facts that enable police to form a reasonable suspicion you are committing a crime. Without such facts, detention is arbitrary. A mere hunch based on intuition is not enough - even if it proves accurate.

However, the right can be limited. In Ontario, for example, the Highway Traffic Act allows police to stop you at random to check your driver's licence and insurance, sobriety and the mechanical fitness of your vehicle. Although there is no "articulable cause" for random stops, the Supreme Court of Canada has held that they are justified because they help detect impaired drivers.

How might this help to defend a drinking and driving charge? Police cannot stop you at random if they have a "hunch" you are concealing drugs or weapons or involved in other crime. If they initiate a random stop for reasons unrelated to your sobriety or motor vehicle and end up charging you with a drinking and driving offence after they smell alcohol on your breath, it may be possible to exclude the evidence and get the charge dismissed.

Right to be secure against unreasonable search or seizure

When you blow into a breath instrument, police "seize" a sample of your breath. For the seizure of breath samples at the police station to be lawful, police need to have reasonable grounds to believe you are committing the offence of Over 80 or Impaired Driving when they demand you undergo breath tests. A "fail" result on a roadside screening device normally furnishes such grounds, as do indicia of driver impairment.

How might this help to defend a drinking and driving charge? The "fail" must be registered on a properly functioning roadside screening device. If there is no evidence that the device is in proper working order, the fail cannot give rise to a reasonable belief that you are Over 80. If police arrested you only because you failed the roadside screening device test, the subsequent breath-test results may be excluded.

Similarly, if police arrest you for Impaired Driving, the observations of impairment prior to your arrest must be sufficient to create a reasonable belief you are impaired. Speeding, weaving from lane to lane, smell of alcohol on your breath, and red, glassy eyes likely justify an arrest. But if police arrest you for Impaired Driving only because you're speeding and your breath smells of alcohol, the arrest may be unlawful and the results of subsequent breath tests may be excluded.

Right to counsel

Once you're arrested for a drinking and driving offence and before a breath test, you have the right to speak to a lawyer without delay and to be informed of that right. If police infringe these rights, the results of any subsequent breath tests may be excluded, resulting in your acquittal on the charge of Over 80.

Language difficulties: You must be told of your right to counsel meaningfully and comprehensibly. If you are not a native English speaker, police may have to use an interpreter and if you want to consult a lawyer they may have to put you in touch with one who speaks your language.

Holding off requirement: Once you tell police you want to talk to a lawyer, police must hold off from eliciting further evidence until you have spoken to one. For example, they cannot subject you to breath tests or question you about your drinking.

Counsel of choice: In addition, police must make reasonable efforts to facilitate your contact with the lawyer of your choice. If your lawyer does not answer the phone, police may have to leave a message and wait for a response. They may be violating your rights if they compel you to settle for advice from state-funded duty counsel if your lawyer cannot be reached right away.

Even if your trial prospects look bleak initially, authorities may breach your Charter rights in the course of bringing your case to trial, as explained below, enabling you to avoid conviction.

Right to make full answer and defence

The Charter entitles everyone facing a criminal charge to obtain from the Crown all information reasonably capable of affecting their defence. This information, required to make full answer and defence, is referred to as "disclosure." In a drinking and driving case, disclosure includes the notes police record during the investigation and a copy of the videotape or DVD, if any, showing your breath tests. You also have a right to know what civilian witnesses have told police. In a refuse sample case, you may be entitled to examine the mouthpiece for defects. The loss or destruction of these materials may bar the Crown from continuing your prosecution.

Right to trial within a reasonable time

Under the Charter, everyone has the right to be tried within a reasonable time. In a case tried in the lower court (in Ontario, court of justice), once you've hired a lawyer and have received basic disclosure, the Crown should bring you to trial within eight to 10 months. Delay in excess of that, particularly where it demonstrably hurts you, may foreclose your prosecution.

Sobriety tests and police questioning

At the roadside

Upon pulling you over, police may demand you perform physical coordination tests at the roadside. Before making the demand, police do not have to tell you that you have a right to speak to a lawyer. You must perform the tests. Non-compliance carries the same penalties as drinking and driving. Police can use the test results only to determine if there are grounds to arrest you for impaired driving and for a demand either for a breath sample or for the performance at a police station of additional tests to determine if you are impaired by a drug. The Crown cannot use the results of the physical tests to establish impairment at your trial.

Upon pulling you over and before arresting you, police also can ask you questions at the roadside about how much you have had to drink. Police can ask these questions before telling you about your right to a lawyer. You do not have to answer such questions. But if you do, police can use your responses to determine if you have alcohol in your body. If police believe that you do, they may require you to provide a breath sample into a roadside screening device. However, the Crown cannot use your responses to prove guilt.

At the station

The police officer who operates the breath testing device may ask you to perform physical coordination tests such as walking a straight line ("heel-to-toe test") and touching your finger to your nose. Do not participate in such tests. Some are difficult to perform sober. (Note: Such tests are not to be confused with mandatory tests to determine if you are impaired by a drug.) You may be nervous and underestimate your impairment. You are not required by law to do the tests. In addition, the police officer who operates the breath device will ask you questions. Do not answer. Many of the questions (e.g., were you driving a motor vehicle tonight, what were you drinking, how much and when) are designed to elicit responses for use against you at trial.

Preparing a defence

It is vital that you record the details surrounding a drinking and driving charge as soon as possible. This information is crucial to your defence. But disclose it only to your lawyer. If it falls into the hands of authorities, the Crown could use it against you.

Do not discuss your alcohol consumption or any other information surrounding your charge with anyone but your lawyer! Doing so could undermine your defence.

Questions for an Over 80 charge

  1. What was your weight on the day of the alleged offence?

  2. Where were you drinking? List all locations in chronological order.

  3. Record the time of your arrival at and departure from each location. Note any details (e.g., television programs) and preserve any documents (e.g., receipts, automatic banking machine slips) that help pinpoint these times.

  4. What type of beverage(s) were you drinking?

  5. Record the alcohol content of each beverage. To determine this information, you can check the beverage container or contact the place where you were drinking.

  6. Record the amount of each drink in ounces or millilitres. If you were drinking beer by the bottle or can, note the size. If you were drinking by the glass (or other vessel), measure it and set it aside.

    If you were drinking at an establishment, find out the amount of beverage poured for each drink. For example, how much liquor is poured per shot? How much wine per glass or carafe? For draft beer, how much is dispensed per serving or pitcher. If you were pouring your own drinks from a pitcher or carafe, find out the size of the glass you used. It may help to obtain a sample glass or other vessel.

Impact on Immigration

A visitor to Canada faces possible deportation upon conviction for impaired driving, drive over 80 mgs., or refuse breath sample. A person who has committed a comparable offence abroad could be denied entry to Canada.

Visitor includes anyone lawfully in Canada as a tourist, or on a work or student visa. It also includes a person who has approval in principle for landing on humanitarian and compassionate grounds.

Inadmissible to Canada

A person seeking to come to Canada as a landed immigrant or as a visitor is likely inadmissible if he or she has been found guilty abroad of a drinking and driving offence.

Permission to enter Canada

A person found guilty of drinking and driving can apply for a temporary resident permit. Issued at the discretion of immigration authorities, the permit is valid up to three years. It can authorize single or multiple entries. The fee is $200 Cdn.

Once five years have passed from the completion of any sentence imposed for the offence, including any driving suspension, a person with a drinking and driving conviction may overcome inadmissibility upon receiving approval of rehabilitation from an authorized immigration official.

Persons not yet eligible for approval of rehabilitation could be granted a temporary resident permit.

Deportation from Canada

A person in Canada as a visitor who is convicted of a drinking and driving offence may not be able to renew his or her visitor permit. Upon conviction, such a person becomes inadmissible to Canada and liable to deportation. To overcome this inadmissibility, a record suspension is required. For information on record suspensions see National Parole Board.

Approval of Rehabilitation

An application for approval of rehabilitation requires:

"Applying for Criminal Rehabilitation," a kit containing the required application form (IMM 1444) and a guide for its completion, can be downloaded or ordered by mail at Citizenship and Immigration Canada's website.

You can complete the form even if you are not yet eligible to apply, but would like to canvass options for entering Canada (no fee required).

Apply early: it can take up to a year to process your application.

If there is any possibility you will one day have to enter Canada, you would be prudent to secure certified true copies of all court records relating to your conviction and sentence, including proof of fine payment, and a transcript of the evidence underlying your conviction.

Impaired driving links

Blood Alcohol Calculator
http://www.impaired-driving-defence.com/BAC.htm
estimate your blood alcohol level at the time of the alleged offence.

U.S. DUI chart
http://www.iihs.org/iihs/topics/laws/dui
shows the administrative licence suspension for each state; maintained by the Insurance Institute for Highway Safety and the Highway Loss Data Institute

Drunk Driving Law Center
http://www.duicenter.com
website of California drunk driving defense attorney Lawrence Taylor

Minnesota DUI Law
http://www.minnesota-dwi-attorney.com
criminal lawyer William Kueffner provides information on DUI defence in Minnesota

Oklahoma DUI Lawyer
http://www.okdui.com
website of criminal lawyer John Honsucker

UK Impaired Driving laws
http://www.nopenaltypoints.co.uk/DrinkDrivingCategory.html
non-profit British public interest site

Drunk driving prevention resources
http://www.carinsurancecalculatoronline.com/car-safety-resource
Drunk driving prevention resources

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