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Drink & Driving


Being charged for drinking and driving is certainly not a pleasant situation, especially if you are a first-time offender. You may not know what to expect or how to proceed with a first offence DUI.

This is further complicated by jurisdiction, and provincial, which means that local representation is an essential factor in your defence. You will need a law firm that is familiar with the DUI laws specific to your jurisdiction.

Driving Offences

There are a couple of charges that qualify as a driving offence, commonly called DUI (driving under the influence).

These include Impaired Driving, Over 80, failure or refusal to perform physical sobriety tests or give breath or blood samples.  This also includes Impaired Driving charges connected to driving under the influence of alcohol and/or drugs.This is noteworthy because as Canada moves to legalize marijuana, it will implement new changes to existing DUI laws. Marijuana consumption trends are changing, and with it the way in which people interact with and interpret the law.

Just the mere fact of sitting behind the wheel in a drunken state can have consequences in the form of a criminal record or license suspension, even if there was no intention of driving the vehicle. The Crown has to prove that you were under “care or control” of the vehicle while your abilities were impaired by alcohol. This can happen in cases where you have your car keys with you and you are in the front seat and the car is not moving. Even if your engine is not turned on, you can be convicted of impaired driving. Furthermore, if you fall asleep in the driver’s seat you are still considered to be in control of the vehicle

Drunk Driving vs High Driving

Drunk driving or driving under the influence of drugs is a crime, but what defines a DUI (Driving under the influence) or DWI (Driving while intoxicated)? The infographic bellow explains what is considered illegal in both Canada and the USA, and what are the differences.

While major policies are being discussed, Canada can look at how states such as Alaska, Colorado, Washington, Washington DC, and Oregon are implementing their existing laws and regulations on impaired driving. Can Canadian and US driving laws serve as a Canada’s marijuana manual on creating laws for drug-impaired driving? If the information and trends in the above infographic are anything to go by, we can very well see Canada constructing a similar legal framework in the near future.

Measuring alcohol levels and drug usage

Both Canada and the US drivers first have to take a breathalyzer test, which can determine level of alcohol in a person’s system.

By passing the breathalyzer test in the US, the driver also has to place an absorbent swab in their mouth and chew on it or touch it on their tongue. In some states (Colorado, California etc.) if an officer pulls over a driver suspected of driving under the influence of marijuana, the driver must take a sobriety test (“horizontal gaze nystagmus test”, “walk and turn test”, “one-leg stand”). The officer orders the driver to provide a blood, breath, or urine test. Also, police officers are using saliva drug test which can detect THC, meth, methadone, cocaine, and several other prescription medications.

In Canada, Police are currently testing roadside oral fluid drug screening devices. If suspected, drivers has to undergo a Standardized Field Sobriety Test (SFST).

When can you be charged with DUI?

There are 1,000 out of 50,000 DUI charges in Canada laid for driving under the influence of drugs each year. 50,000 people are arrested for drunk driving every year. Currently, you can be charged with a DUI if you were in control of a vehicle, even if you weren’t driving it. You can get DUI charge by either having a blood alcohol concentration at or over 0.080%, or by showing signs of impairment. In the USA, about 1,000,000 people get charges for drunk driving. Similar to Canadian laws, you become a DUI offender and can get a DUI charge if your blood alcohol level is above 0.08%.

What Is the Legal Limit for Blood Alcohol Levels? How Much Can I Drink Without Getting Charged With DUI?

You can still probably have a drink or two as long as you don’t hit the limit for blood alcohol level which is 0.05 in Ontario if you have a full G license. Ontario is one of the provinces that has “warn range”  laws. So if you have between 0.05 and 0.08 you will lose your license for 3 days and you will need to pay the associated fines. The fines for the warn range are usually up to $180 (administrative monetary penalty) .

If this happens to you more than once, and you get one more warn range charge within a 5-year period, you could lose your license for 7 days. In addition, you will have to attend an alcohol treatment program and to pay a $180 penalty.

If it happens that in the same 5-year period you get charged for a third time, you will lose your license for 30 days, be required to pay a fine in the amount of $180, attend an alcohol treatment program and  install an interlock device for a 6-month period.

More serious DUI Ontario charges can be laid if your blood alcohol level is over 0.08.

What Are the Ramifications If I Hit the Limit of 0.08?

You will immediately get your license suspended for 90 days, your vehicle will be impounded and you will have to pay the same amount of money as for the warn range – $180. If convicted for impaired driving, first time offenders can expect to face the following penalties: $1000 fine, 1-year license suspension, required use of an interlock ignition device for at least one year and attendance at an alcohol treatment program.

If convicted and you are a second-time offender, apart from the mandatory alcohol treatment program, you can expect the following penalties: a 30-day minimum jail sentence, license suspension for 3 years and when you get your license back you will be required to equip your vehicle with an interlock ignition device for an additional 3 more years. Moreover, you will likely be fined in an amount determined at the discretion of the judge.

If convicted for impaired driving more than two times, the penalties are harsher: the minimum jail sentence is 120 days and your license can be suspended for a lifetime, although in some cases this penalty can be reduced to 10 years. You will also be fined in an amount determined by the discretion of the judge and have the lifetime requirement to drive a vehicle with an interlock ignition device

What are the penalties for impaired driving?

For drunk driving in Canada,

A first-time offender should pay the fine of $1000. In addition to that, a person charged with DUI should pay a monthly fee for installing an ignition interlock device in his/her vehicle, which is about $1,350.

Court costs can range between $2,000 and $20,000. A license reinstatement fee is $150. One should also expect to pay a minimum of $18,000 for the increases in insurance costs.

 penalties range from monetary fines to jail (A $1000 fine + 12-month driving prohibition to 120 days in jail + 36-month driving prohibition) depending on whether there are previous sentences, but your license is often suspended. However, you can reclaim it under certain conditions.  If you harmed a person physically, maximum jail sentence is 10 years. If you killed a person, maximum sentence is life in prison.

Meanwhile in the USA, the penalties for a DUI, DWI and OWI (operating while intoxicated) vary by state and jurisdiction. For a first or second offence, the penalties include: fines up to $5,000, loss of (or serious restrictions on) one’s driver’s license for 3-6 months possible jail time. As for drug-impaired driving, in Colorado the first conviction penalties are 9 month license suspension, 5 days to 1 year in jail, 48-96 hours of public service and fine up to $1000.

Can I Be Charged if I Refuse to Take the Breath Sample Test?

Yes, you can be charged with the offence of refusal or refusal to blow (criminal code 254(5),  unless you have a reasonable excuse for not taking the test. It is interesting to note that the penalties for the refusal charge are the same as penalties for DUI charges: $1000 for first offence, 30 days jail sentence for the second, 120 days jail sentence for the third offence. In addition to that, you will get a criminal record for the first time offender.

What is considered as a reasonable excuse for not taking the breath sample test or breathalyzer test?

It depends on the particular situation, one reason may be considered reasonable in one case, whereas it won’t be considered reasonable in another.  Some examples of reasonable excuses may related to a medical nature – different health issues that restrain a person from taking the test. There may be other reasons as well, but the general expectation is that one take the test.

What Is the Difference Between a Roadside Breath Sample Test and a Breathalyzer Test?

The roadside breath sample test is a screening device used by the police at the side of the road when they pull you over under suspicion that you were driving impaired. The breathalyzer test is carried out at the police station and it is more precise than the roadside test.

How Does a Breathalyzer Work?

A breathalyzer is an instrument used by police to define the specific quantity of alcohol in your breath. It uses infrared energy which passes through the breath sample which indicates the amount of alcohol. Some machines use 2 and others use 3 different infrared frequencies. Those machines that use 3 are more accurate, however they are not infallible.

What Are the Police Allowed to Do When They Stop My Vehicle?

The police can always ask to see your driver’s license and insurance. If the police suspect that you are driving under the influence you will be asked to take a physical sobriety test or a roadside breath test. They don’t have to wait for a lawyer before taking the test. However, if you are taken to the police station to have a breathalyzer test, the police will have to give you the right to speak to your lawyer before taking the test.  

How to Behave With the Police?

It is important to keep in mind that refusal to blow into a breath test or agree to a blood test without a reason has the same consequences as blowing over 80. However, you are not obligated to tell the police how much you had to drink. You are free to remain silent.

Also, it is important to know that the police must use one of the official testing methods – trying to smell alcohol on you is certainly not an official way to reveal how many drinks one had. However, the police have a right to use all possible legitimate methods to establish if somebody was impaired while operating a vehicle.

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