Can I beat an impaired driving charge?

Being charged with impaired driving –– by alcohol, drugs or a combination of the two –– is a serious matter that has severe consequences. Those who are found guilty face stiff penalties, including the loss of their driver’s licence, demerit points, fines, imprisonment and a criminal record.

In this post, I’ll be exploring the various aspects of impaired driving charges in detail. If you would like to navigate directly to the section that pertains to your situation, you can do so by clicking the links below.

In Ontario, police officers have broad roles, which include the ability to stop drivers to ensure they are properly licensed and driving in a safe manner. They can demand a breath sample at the roadside from any driver to determine if that person is driving under the influence of alcohol. If a driver fails the test or refuses to take it, they can be immediately suspended from driving and face criminal impaired driving or other charges.

Your best chance of beating an impaired driving charge is by working with a lawyer who understands the intricacies of the law and how to negotiate with the Crown to minimize the impact of an offence. Impaired driving charges are very technical, with penalties assessed under either provincial regulations or the Criminal Code.

People who choose to represent themselves in such matters typically aren’t successful because of the high level of technicality involved. As a criminal defence lawyer who has successfully represented clients charged with impaired driving, I have a deep understanding of the complexity of such matters. There are multiple pieces of the puzzle that require careful handling including the federal Criminal Code, provincial Highway Traffic Act, police procedures, instruments used for testing impairment, and the experts who are called to bring evidence in such cases.

It’s important to recognize that not all cases have the prospect of a solid defence, and a person’s only option is a guilty plea. Even in such situations, a skilled lawyer can negotiate with the Crown and the judge to ensure the sentence is within mandatory minimums and the lowest one possible in the circumstances.

In a recent case, my client was charged with impaired driving after being stopped by police who observed him weaving in and out of lanes on the highway. After numerous discussions with the Crown and the judge, I was able to negotiate a guilty plea to the lesser charge of careless driving. My client lost his licence and received a fine but was able to avoid a criminal record.

Sobering statistics

Every day in Canada, an average of four Canadians die and 175 are injured in impairment-related crashes, according to MADD Canada.

In 2017, there were more than 69,000 police-reported impaired-driving incidents across Canada — about 3,500 were related to drugs, reports Global News.

The Ontario Provincial Police (OPP) laid 8,868 impaired driving charges under federal and provincial statutes in 2018, up slightly from 2017. That number doesn’t include the charges laid by municipal police officers in various jurisdictions across the province.

A Statistics Canada report found the national rate of impaired driving causing bodily harm was more than three and a half times higher in rural areas, and the rate of impaired driving causing death was seven times higher, according to media reports.

Crime and punishment

You will be charged with impaired driving under the Criminal Code  if you have more than 80 mg of alcohol per 100 ml of blood after giving a breath sample. Having a prohibited level of alcohol, THC, or other impairing drugs in your blood within two hours of driving is an offence, according to the Department of Justice. Penalties vary, depending on the alcohol or drug concentration, whether it’s a first or repeated offence, and whether a person has caused bodily harm or death to another. More detailed information is included in the penalties sections below.

If your Blood Alcohol Concentration (BAC) is between 0.05 and 0.08 or if you’re a new driver with any alcohol or drugs in your system, you will be charged with a provincial offence under Ontario’s Highway Traffic Act. If you’re found guilty, your driver’s licence will be revoked (but for a lesser amount of time than you would if convicted under the Criminal Code), you’ll receive demerit points on your driver’s licence, incur a fine and will have to pay $281 to reinstate your licence, but you wouldn’t have a criminal record.

Penalties for a first offence, repeat offenders

If it’s your first offence and your BAC is 0.05 or higher, or you fail a roadside sobriety test or violate the zero-tolerance requirements for young, novice and commercial drivers, you will face a three-day licence suspension and a $250 fine under the Highway Traffic Act.

If it’s your second provincial offence within five years, you can expect even harsher treatment. Your licence will be suspended for seven days; you’ll have to pay a $350 fine and will have to attend a mandatory education program.

For third and subsequent offences, drivers will lose their licence for 30 days and have to pay a $450 fine. They will also have to attend a mandatory treatment program, use the ignition interlock device for at least six months once their licence is reinstated and undergo a medical evaluation to determine if they meet the requirements for driving in Ontario.

First offences that result in a criminal conviction –– BAC over 80, refusal to provide a breath sample, or driving while exceeding the legal blood-drug limit –– will result in a minimum one-year licence suspension and a criminal record. Drivers will also have to pay a minimum fine of $1000 and be required to install the ignition interlock device for at least one year.

On the second offence, a driver would also likely receive jail time, which, depending on the circumstances, I may be able to negotiate with the Crown so that he or she can serve their time on the weekend when it won’t interfere with their job. There are huge repercussions for those convicted a third time, usually involving at least four consecutive months of jail time.

In March of this year, an Ontario man received a $2,200 fine and a one-year driving ban after pleading guilty to impaired driving. The man was previously convicted of impaired driving in 1984, and the judge condemned his “shocking” and “selfish decision,” adding a $660 victim fine surcharge.

In most cases, when a driver receives a second conviction driving, penalties under the Criminal Code come into play, including a minimum of 30 days in jail. In some cases, I have been successful in negotiating with the Crown not to file notices on the previous conviction so that the mandatory minimums don’t apply.

Sometimes a person can reduce the penalties they incur by attending a rehabilitation program for drug or alcohol treatment. In a recent case, my client was charged with his third impaired driving offence. He volunteered to enter a day program in Ottawa and was able to serve his jail sentence on weekends, which allowed him to maintain his job.

Criminal convictions

No matter what age you are or what licence you possess, if you are convicted criminally of impaired driving in court, you can face fines and jail time in addition to:

First offence

  • Licence suspension of at least one year

  • You must attend a mandatory education or treatment program

  • Requirement to use an ignition interlock device for at least one year

  • You will need to undergo a mandatory medical evaluation to determine whether you meet the requirements for driving in Ontario

Second offence within 10 years

  • Licence suspension of at least three years

  • You must attend a mandatory education or treatment program

  • Requirement to use an ignition interlock device for at least three years

  • You will need to undergo a mandatory medical evaluation to determine whether you meet the requirements for driving in Ontario 

Third or more offence within 10 years

  • Lifetime licence suspension, which may be reduced after 10 years if you meet certain criteria

  • You must attend a mandatory education or treatment program

  • Requirement to use an ignition interlock device for at least six years

  • You will need to undergo a mandatory medical evaluation to determine whether you meet the requirements for driving in Ontario

Reduced licence suspension with ignition interlock

The Reduced Suspension with Ignition Interlock Conduct Review program allows eligible drivers convicted of a first or second alcohol-impaired driving offence under the Criminal Code to reduce their licence suspension in return for meeting specific requirements, such as the installation of an ignition interlock device in their vehicle.

Drivers participating in the program as a first-time offender will be in one of two streams:

  • Stream A: minimum licence suspension of three months, followed by a minimum nine-month ignition interlock installation period

  • Stream B: minimum licence suspension of six months and a minimum interlock installation period of 12 months.

Drivers who are not eligible for or who choose not to participate in the program will be subject to the standard sanctions under the Highway Traffic Act.

Legal defences for impaired driving charges

The good news is that it’s possible to beat impaired driving charges or plead them down to a lesser offence to minimize the impact they will have on you.

Every case is different, and how to defend it will depend on the circumstances, but as I mentioned earlier, there are several technical issues to consider in determining the route I take. I review all the evidence with a fine-tooth comb, including the defendant’s account of what happened, police reports, toxicology results, videos taken at the scene and the person’s history of impaired driving offences, if he or she has one.

Following are some of the defences I might rely on in defending charges of impaired driving:

1. Did police follow proper procedure?

The police have the legal right to conduct random spot checks for impaired drivers. Although you are not required to respond to questions by the police, failing to do so may lead the police to suspect you have consumed alcohol or drugs, and they will likely require you to take a roadside test or provide a breath sample.

I look at all aspects of a case to understand if the officers did their due diligence in following every requirement as laid out in the Code. If not, there could be a defence based on their failure to follow proper procedures.

For example, if the officer requested a breath sample an hour or more following an arrest, it could be argued that the demand was not made as soon as practicable, which is a legal requirement in these cases.

I would also look at whether or not the Intoxilyzer, the instrument used to test a breath sample, was done properly. A toxicologist for the defence would examine the printout from the Intoxilyzer to ensure it was calibrated correctly before the breath tests were performed or if the calibration check showed it was outside the acceptable range.

2. Have a person’s Charter rights been violated?

Under the Charter of Rights and Freedoms, everyone who is arrested or detained has the right to be promptly informed of the reasons for the arrest and to retain and instruct counsel without delay. If the police fail to communicate these rights to the detained person correctly, or if they delay in any way, it could be argued that they violated the person’s right to counsel.

At that point, we could have some of the evidence excluded. If the evidence consists of the reading from the breathalyzer, that means there’s no evidence left to prove an “over 80” reading, so that the charges would be dismissed.

3. Were the tests done as soon as reasonably possible?

The law requires that the demand for a breath sample be made “as soon as practicable.” That doesn’t mean it has to be immediate but based on the circumstances of the case, did the police bring the person to the station and ask them to blow into the Intoxilyzer as soon as reasonably possible? If the tests weren’t done as soon as practicable, then the evidence of the “over 80” ready would be excluded as there would be no foundation for which to lay charges.

Consider the following example: Three police officers arrive at an accident scene on the road where they suspect the driver has been drinking. They wait 30 minutes for a tow truck to arrive before taking the suspect to the police station and administering the Intoxilyzer test. In that case, it could be argued that the analysis wasn’t performed as soon as practicable because one of the three officers could have left the scene earlier to ensure the test was performed in a timely manner.

If, however, someone has to wait 40 minutes or longer for an Intoxilyzer test because there were numerous other impaired offences at the same time, we couldn’t make the same argument. In that situation, the test would have been administered as soon as reasonably possible.

Choose experienced legal counsel

Dealing with the police and the criminal justice system in cases involving impaired driving charges is a serious matter that requires a skilled and experienced legal advocate. I have successfully represented numerous clients by having the charges reduced or dismissed. If you have been charged with impaired driving, call me for a free consultation.

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Impaired driving