In Canada, three of the most common driving related offences under the Criminal Code are ‘Impaired Driving’, ‘Driving with Excess Blood Alcohol/Over 80’ and ‘Refusing a breath sample’. Being charged with any one of these three offences is a criminal charge prosecuted pursuant to the Criminal Code of Canada. The term ‘DUI’ (driving under the influence) is commonly used outside of the legal community, however ‘DUI’ is not a charge found in the Criminal Code of Canada. Do not consider pleading guilty unless you have spoken to an experienced Brampton criminal lawyer. Call Passi & Patel and allow one of our Brampton criminal lawyers to provide you with the advice and guidance that you need in order to make an informed decision.
Impaired Driving Lawyer (DUI) in Brampton
Criminal Code of Canada – Definition of Impaired/Over 80
320.14 (1) Everyone commits an offence who
(a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;
(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;
(c) subject to subsection (6), has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation; or
(d) subject to subsection (7), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.
Impaired Driving suggests that your ability to operate a motor vehicle was ‘impaired’ by alcohol. Often, civilians, concerned or police officers will see a motor vehicle being operated in an unsafe or unusual manner and report the driving. Upon being stopped, if the officer has grounds to believe that the driver is impaired, the officer will place the driver under arrest for Impaired Driving, and transport him/her to a local police station. Once at the station, the arrested party will be required to provide two samples of their breath into breathalyzer. If both of these samples show that the accused party’s ‘blood alcohol concentration’ (B.A.C) was 80 milligrams of alcohol per 100 millilitres of blood or over, then a further charge of ‘Driving with Excess Blood Alcohol/Over 80’ will be laid.
In the alternative, if an individual is stopped during a routine traffic check, RIDE program or a Highway Traffic Act (HTA) violation and the officer suspects that the driver has consumed alcohol, they will demand that the driver provide a sample of their breath into an “Approved Screening Device” at the roadside. In this circumstance, the police are not under a belief that the driver is ‘impaired’, rather they are under the suspicion that the driver has consumed alcohol. If the driver fails the Approved Screening Device (which is calibrated to fail at 100 milligrams of alcohol per 100 millilitres of blood), then the officer has grounds to arrest the driver and take them back to the station to provide further samples of their breath into a breathalyzer. Once at the station, the arrested party will be required to provide two samples of their breath into a breathalyzer. If both of these samples show that the accused party’s ‘blood alcohol concentration’ (B.A.C) was 80 milligrams of alcohol per 100 millilitres of blood or over, then the charge of ‘Driving with Excess Blood Alcohol/Over 80’ will be laid.
In respect to the offence of “Impaired Driving” or “Impaired Operation”, the word “impaired” is not defined in the Criminal Code. Despite the wording in section 320.14(1)(a) that the impairment can be of “any degree”, this does not mean that every person who is just slightly impaired will be found guilty; the offence does not require that the driver themself be impaired, but rather that their ability to drive be impaired. In R. v. Bush,  O.J. No. 3453, the Ontario Court of Appeal upheld a prior case’s interpretation of the term “impaired”: “slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgement, and regard for the rules of the world.”
Prior to the 2018 Amendments to the Criminal Code, to be convicted of an ‘Over 80’, the Crown had to prove an individual’s B.A.C. at the time of the driving. Given that the testing occurs at the station some time after the individual has driven, this was a hard burden to meet as the body naturally gets rid of alcohol over time. Thus, the Crown would have to either rely on an expert toxicologist to “read back” the B.A.C. from the breath samples to the time of driving, or rely on the presumptions of accuracy and identity. These presumptions required a number of preconditions to be raised, but if satisfied, would establish that the breath tests accurately set out one’s B.A.C., and that the B.A.C. at the time of driving was the same as when the breath samples were given. However, under the new section 320.14(1)(b), so long as the breath samples are provided within two hours of driving (and are 80 milligrams of alcohol per 100 millilitres of blood or over), the offence is made out.
Since the 2018 Amendments to the Criminal Code, police have been able to conduct Approved Screening Device demands on a traffic stop even without suspicion that the driver has been consuming alcohol. Section 327.27(2) of the Criminal Code allows any police officer who has such an Approved Screening Device in their possession, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, to make a demand for the driver to immediately provide samples of breath. These “mandatory alcohol screenings” are only applicable to tests for alcohol; to make demands to test for the consumption of drugs, the officer must have reasonable suspicion that the driver has consumed drugs and has driven in the preceding three hours.
Reasonable suspicion is the lowest legal standard in the Criminal Code, and must be established on both a subjective and objective basis. As held by the Supreme Court in R. v. Chehil,  3 S.C.R. 220, a reasonable suspicion “means something more than mere suspicion and something less than a belief based upon reasonable and probable grounds.” This means that the police officer must have honestly suspected that the driver had consumed alcohol or drugs, and that belief must be objectively supported by the circumstances. For example, in R. v. Kapera,  O.J. No. 1400, the driver had been driving relatively fast, come to a rolling stop at a stop sign, and slid into another lane after turning around a corner. The police were found not to have reasonable suspicion that the driver had consumed alcohol, even though they were patrolling the area near a beer garden; the weather conditions were poor, and there was a snowstorm, which could explain the rolling stop and sliding.
Where a police officer has reasonable suspicion that a driver has drugs in their system, they may demand that the driver perform certain physical coordination tests or provide samples of bodily substances to test for the presence of drugs. The physical coordination tests (called “standardized field sobriety tests” include a one-leg stand test, a walk-and-turn test, and a horizontal gaze nystagmus test. These tests are similar to an ASD test used for impaired by alcohol offences, but differ in that a “fail” result on an ASD will almost always give the officer reasonable and probable grounds that the driver has committed an ‘Over 80’ offence. On the other hand, the physical coordination tests do not provide concrete evidence, and it will often be up to the testing officer’s judgement to determine whether the driver is actually impaired by drugs.
What happens if I ‘refuse’ to provide a breath sample?
Refusing to provide a breath sample, either for the roadside screening device or the breathalyzer at the police station is a criminal offence in and of itself. The consequences of a conviction for this charge are essentially the same as those for a conviction for ‘Impaired Driving’ or ‘driving Over 80’, namely, a criminal conviction, driving prohibition, license suspension and the same insurance consequences.
The offence of refusing to provide a breath sample may be defended against where the accused had a ‘reasonable excuse’ for their refusal. The onus is on the accused to prove that they had such a reasonable excuse. The most commonly relied on excuses are where providing a sample would pose a substantial risk to the life or health of an individual. For example, in R. v. Moser,  O.J. No. 602, the accused was held to have a reasonable excuse due to his having a fractured neck; if he had blown, he could have died or become paraplegic.
The Penalties for Impaired Driving/Driving ‘Over 80’ as per the Criminal Code of Canada:
The specific penalties under the Criminal Code are as follows:
320.19 (1) Every person who commits an offence under subsection 320.14(1) or 320.15(1) is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of,
(i) for a first offence, a fine of $1,000,
(ii) for a second offence, imprisonment for a term of 30 days, and
(iii) for each subsequent offence, imprisonment for a term of 120 days; or
(b) an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than two years less a day, or to both, and to a minimum punishment of,
(i) for a first offence, a fine of $1,000,
(ii) for a second offence, imprisonment for a term of 30 days, and
(iii) for each subsequent offence, imprisonment for a term of 120 days.
Why should you hire Passi & Patel for Impaired Driving offences?
It is important to note that Impaired Driving is a very technical and complicated area of law that requires in-depth knowledge and experience. Every case is different and has its own subtleties and nuances. Here at Passi & Patel, our Brampton criminal lawyers understand that the consequences of a drinking and driving charge will have a significant impact on a person’s ability to work, travel and gain meaningful employment. If you are facing a drinking and driving related charge and are in need of experienced representation, call Passi & Patel at (905) 459-0004 and let our Brampton criminal lawyers get to work for you.
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