The holiday season is a wonderful time of year to gather with your family, friends, and co-workers – and of course, to consume alcohol. For this reason, now is a good time to review some information about drinking and driving offenses in Ontario.
Generally speaking, there are three Criminal Code offenses for drinking and driving:
- driving “over 80”
- impaired driving
- refusing to provide a breath sample
In order to detain you for a drinking and driving investigation, the police only need a reasonable suspicion that you have been consuming alcohol. This can be satisfied by a police officer’s observations of impairment (e.g. slurred speech, alcohol on the breath, bloodshot eyes, etc.).
Once the police have developed a reasonable suspicion, they then need to form reasonable and probable grounds in order to make an arrest. Most commonly, this is done by obtaining a breath sample at the roadside using an “approved screening device,” which is a handheld breathalyzer device. They are designed to help police decide whether to bring you to the station for further testing or not.
If it returns with a “fail” message, you will be brought to the nearest police station with an “approved instrument” and a “certified breath technician”, where they will take two more samples of your breath. The most common type is the Intoxilyzer 8000C, which is roughly the size of a cash register. Because of its design and mechanics, it is capable of producing a more accurate sample of a person’s blood alcohol concentration. If the machine returns values that are in excess of 80 mg of alcohol in 100 ml of blood, you will be arrested for being “over 80.”
Depending on the police officer’s observations on the road and/or the observations of anyone else who saw you driving, you may also receive a charge for driving while impaired. Depending on the severity of these observations, the police may still have grounds to charge you with impaired driving even if you have less than 80 mg of blood in 100 ml of your blood.
Failing or refusing to provide a breath sample, either at the roadside or at the police station, is a separate offence. The Criminal Code says that it may be a defence to this charge if you have a reasonable excuse, the most common being a medical condition that would preclude you from doing so. Even if the police believe that you have a legitimate medical condition, they may still have the authority to obtain a sample of your blood or to proceed with a charge of impaired driving.
All three of these offenses carry a mandatory minimum penalty for a first offence: a $1000 fine and a 12-month driving suspension. A finding of guilt will also leave you with a criminal conviction, which can significantly impact your ability to work and travel. The police also have the discretion to issue a 90-day administrative driver’s licence suspension. This means that your licence could be suspended for a total of 15 months. If you need to drive in order to do your job, this can be the most significant consequence of a conviction.
Almost inevitably, your car insurance premiums will rise after a conviction for any of these offenses. When added to the cost of impound fees and hiring a lawyer, an absent-minded decision to drive after your holiday party can quickly end up costing you many thousands of dollars, loss of employment and lot of stress.
Unlike other offenses under the Criminal Code, Legal Aid Ontario will not pay for a lawyer to represent you unless the charge is for a subsequent offence (i.e. where you already have a conviction for one of these offenses on your criminal record). The rationale for this is that a subsequent conviction for one of these offenses carries a mandatory minimum punishment of 30 days’ imprisonment, in addition to the mandatory driving prohibitions.
In most cases, the primary benefit to pleading guilty is that the 12-month driving suspension may be reduced to 3 months all of the other consequences of the conviction will still apply. For this reason, it will usually be worth contesting a charge or – at the very least – consulting with a lawyer before pleading guilty. There are many court decisions that govern the specifics of what a police officer must do at each point in their investigation to ensure that an investigation is conducted properly and in accordance with your rights. These requirements are onerous because courts recognize the impact of a conviction. Because of this, it is usually possible to present a credible defence to a charge.
There are many apps and calculators online to help you determine the amount of alcohol that you can legally consume before reaching the legal limit. None of these are capable of incorporating all of the factors that might influence your blood alcohol content and, as mentioned above, you can still be charged for impaired driving even when you fall below the legal limit. Therefore, if you plan on driving to your holiday party, the best way to avoid any of these charges is to not drink at all.
Brian Eberdt is a criminal defence lawyer with Lockyer Campbell Posner. Reasonable Doubt appears on Mondays.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Lockyer Campbell Posner or the lawyers of Lockyer Campbell Posner.
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