Impaired Driving and Related Offences
Impaired driving is a criminal offence pursuant to the Criminal Code of Canada. Impaired driving offences are very serious, partially due to the serious penalties associated with convictions for such offences.
It is important to note that typically when an individual is charged for impaired driving they are not charged with a single criminal offence. The most common charges for impaired driving are:
- Operation while impaired (section 253(1)(a)) – This charge refers to circumstances where an individual is believed to be impaired while in care and control of a motor vehicle. The impairment that can be caused by alcohol or drug. Care and control of a motor vehicle includes driving a vehicle, but also includes circumstances where the vehicle may be set in motion by an individual who is allegedly impaired.
- Operating a vehicle with a blood alcohol concentration Over 80 (section 253(1)(b))- This charge refers to an individual having care and control over a motor vehicle with a blood alcohol concentration over 80 mg of alcohol per 100 mL of blood.
- Refusal or Failure to Provide Breath Sample (section 254(5)) – Failing to provide or refusing to provide a breath sample when a lawful demand is made by police is a criminal offence. An individual can be charged with this offence for failing/refusing to provide a sample for the roadside screening or a sample while at the police station.
Penalties for Impaired Driving and Related Offences
The penalties for impaired driving and related offences are very serious. Aside from the sanctions imposed by the court, one serious consequence is the fact that you will get a criminal record if a conviction is entered. Depending on your circumstances, having a criminal record may be the most harmful part of an impaired driving charge.
Pursuant to the Criminal Code, there are a series of mandatory minimum penalties that are imposed as well as driving prohibitions for Operation while impaired (section 253(1)(a)), Operating a vehicle with a blood alcohol concentration Over 80 (section 253(1)(b)) and Refusal or Failure to Provide Breath Sample (section 254(5)).
There is an incremental approach when subsequent conviction is considered.
- For a first conviction, the mandatory minimum sentence is a $1000.00 fine.
- For a second conviction, the minimum penalties increase to imprisonment for not less than 30 days.
- For third and subsequent offences, the minimum punishment increases to imprisonment for no less than 120 days.
It is important to note that the above are minimum sentences, and it is possible for an individual to be sentenced to more serious penalties, even on a first offence.
For each conviction, a driving prohibition is also ordered with the prohibition lasting for a minimum of one year and potentially having a life time prohibition ordered.
The Registry of Motor Vehicles also generally imposes different and sometimes more harsh sanctions than the Court regarding your driving privileges if you are convicted of a criminal alcohol driving offence.
At McCarthy Law, we will review our client’s disclosure to be certain all available defences for our client to contest their charges. We understand the seriousness of obtaining a criminal record and convictions for impaired driving and related offences. Some aspects we will review with our clients include potential elements of the offence defences, as well as any potential Charter of Rights and Freedoms breaches that could result in our client remaining free from a criminal conviction.
Elements of the offence defenses include, but are not limited to the following:
- Identity – can the Crown successfully prove that our client was in care and control of a motor vehicle;
- Functionality of the data master machine – was the machine used to measure the breath sample properly functioning, and was it administered by a certified data master technician;
- Breath demand – did the police read a proper breath demand when requesting a breath sample;
- Time limits – was the breath sample provided within three hours of our client being in care and control of a motor vehicle;
- Continuity – can the Crown prove that our client was impaired while in care and control of a vehicle as opposed to becoming impaired after they got out of the vehicle.
Charter of Rights and Freedoms defenses include, but are not limited to the following:
- Charter Rights and Caution – was our client properly read their charter rights and caution when arrested by police;
- Right to Counsel – was our client provided their right to counsel;
- Right to not be arbitrarily detained or arrested – did the officers have reasonable and probable grounds to detain or arrest our client;
- Right to life, liberty and security of the person – was our client’s fundamental rights to life liberty and security of their person violated when they were interacting with police?
These are just examples of the various defences we will explore to further our client’s interests and ensure they obtain the best results possible.