No. Police officers will typically only demand a blood sample where they believe that you are incapable of providing a breath sample because of your physical condition, or that would be impracticable to obtain a breath sample. Most commonly blood is taken in hospital settings.
If the police demand a breath sample, and you insist on a different form of testing without a lawful excuse, this can be considered the same as a refusal to provide a breath sample, and you will be charged accordingly. The penal consequences for being found guilty of impaired driving/over 80 and for refusing to provide a breath sample are the same.
When police pull you over and develop a suspicion that you consumed alcohol, they may demand that you provide a sample of your breath immediately into a roadside device, also known as an Approved Screening Device or an “ASD.” The ASD readings cannot be used in court as proof of impairment or your blood alcohol content (“BAC”), but only to confirm the officer’s suspicion that you have alcohol in your body over the legal limit.
If you fail an ASD test at the roadside, the officer will then have grounds to arrest you and bring you to the station to provide a sample of your breath into a device that is commonly referred to as a “breathalyzer,” also known as an Approved Instrument. The results of the breathalyzer may then be used in court against you to support a conviction.
The police have authority top stop any vehicle on the road to investigate traffic offences or check consumption of alcohol. When police pull you over, they can always ask to see your driver’s license, registration and insurance information. The police can also ask you if you consumed alcohol. If at any point in your interaction they begin to suspect that you have alcohol in your body, they have the right to ask for a physical sobriety test or roadside breath test. You do not have the right to speak to a lawyer before taking the roadside test, since at that point you not under arrest, but only detained for an investigation. However, if you fail the roadside breath test, you will be placed under arrest, at which point you are guaranteed certain rights under the Charter.
The clear answer to this one is, yes. Since these are criminal charges, a conviction will lead to a criminal record. While there are steps that you can take to have this unpleasant stain on your record to be removed, several years must pass before you are eligible for that process. And even then, there is no guarantee that it can be cleared from your record.
In this situation, you will be charged with the criminal offence of “Over 80 milligrams.” In addition, your driver’s license will automatically be immediately suspended for 90 days, and your vehicle will be impounded for 7 days. If you are later convicted, you can expect to be fined $1000 at minimum for a first offence, as well as a 1-year Canada-wide driving prohibition. You can expect the penalties go up in proportion to the circumstances of your offence (such as your breath readings, and whether anyone was hurt) and the amount of prior convictions you have.
The key focus of the charge of impaired driving is on the driver’s ability to drive, and not necessarily his or her blood alcohol content. In fact, an impaired charge can be proven even without breath samples. If the Crown proves beyond a reasonable doubt that your ability to operate was impaired even slightly by alcohol, a drug, or a combination of both, a conviction is likely to follow. This charge applies not only to impairment by alcohol, but also to impairment by drug or a combination of alcohol and drug. The Crown will usually have to rely on signs of impairment (or “indicia of impairment”) that were observed by the police and/or civilian witnesses in order to prove the charge against you. In contrast, the key focus of an Over 80 charge is the blood alcohol content itself, regardless of the degree of the impairment.
If the blood alcohol concentration, or BAC, in your body is found to be over 80 mg per 100 ml of blood, this is referred to as a charge of “Over 80.” In contrast to an Impaired charge, to secure a conviction, the Crown only needs to prove that your BAC was over 80 milligrams beyond a reasonable doubt, regardless of the degree of impairment you may have exhibited.
In most cases, if the results of the breath tests are admitted into evidence, a conviction is likely to follow. At trial, your defence lawyer will typically attempt to get your breath readings excluded from evidence based on violations of your Charter rights and/or irregularities in the procedural requirements. This is why it is important to consult an experienced defence lawyer to help you assess your case and achieve the most favourable outcome.
First-time offenders should be prepared to pay a minimum fine of $1000. The fine amount may increase in proportion to the circumstances of your offence (such as your breath readings, and whether anyone was hurt) and the amount of prior convictions you have. For each subsequent offence, the is an increased likelihood of jail and an elevated fine.
You should also expect a Canada-wide driving prohibition to be imposed for a minimum of 1 year, which will increase with each subsequent offence. Depending on your circumstances, you may or may not be able to shorten that time period through a program approved by the Ministry of Transportation, which will involve an installation of an Interlock device. There may also be additional consequences imposed by the Ministry.
Yes. Whenever you get behind the wheel of your vehicle in an impaired state, you can be held accountable. Even if your car was not in motion and you were simply seated in the driver seat while impaired or with BAC over 80 milligrams, you may be convicted for having “care or control” of a motor vehicle while impaired/over 80. Where the Crown proves that you performed some act involving the use of the car, its fittings, or equipment; that your ability to drive was impaired or that your BAC was over 80; and that the circumstances create a realistic risk of danger to the public or property, you may be convicted.
Any criminal offence will stay on your record until you successfully apply for a criminal record suspension (also known as a “pardon.”) If the Crown proceeded by way of summary conviction, you must wait at least 5 years after your sentence was completed before you can apply. If the Crown proceeded by indictment, it will be at least 10 years before you are eligible. These are just the basic requirements, and there is no guarantee that your record suspension application will be approved.
Where no one is hurt, the maximum penalty is 18 months in jail if the offence is prosecuted by way of summary conviction, and 5 years if the offence is prosecuted by Indictment. In the case of bodily harm or death, the maximum penalty is 10 years in prison and life in prison respectively.
The key focus of the charge of impaired driving is on the driver’s ability to drive, regardless of his or her blood alcohol content (BAC). On the other hand, the charge of Over 80 is only concerned with the BAC, and not at all the driver’s ability to drive or level of impairment. It is possible to be convicted of Over 80 without any signs of impairment. It is likewise possible to be convicted of impaired driving with no evidence of BAC or breath readings at all.
While police often charges drivers with both criminal offences, Canadian law states that you cannot be punished for both if they arise out of the same incident. If you are charged with both offences and convicted of both, at the end of the proceedings one of the charges will be conditionally stayed, and you will only be punished for one of them. However, it is important to keep in mind that a conviction for either offence is the same. This means that in order to avoid the penal consequences that come along with either of the two offences, you must avoid conviction on both.
According to the Canadian Criminal Code, an individual is presumed to be in care and control of a motor vehicle if they are found in the driver seat while impaired or with a BAC of over 80 milligrams. If the Crown is successful, the burden will shift to you – the accused – to establish that you did not occupy the driver seat with the intent of setting the vehicle in motion.
Even if you are not found in the driver seat, the Crown may show that you were in care or control of the vehicle by proving that a) you performed some act involving the use of the car, its fittings, or equipment; b) that your ability to drive was impaired or that your BAC was over 80; and c) that the circumstances create a realistic risk of danger to the public or property
Your ability to successfully defend yourself against a charge of being in care or control while impaired/over 80 is highly technical and fact specific. You should always consult a lawyer to help you assess your case and identify viable defences.
No. It is never in your best interest to simply plead guilty to a criminal charge before you had a chance to review the entire case against you and make an informed decision with the assistance of a lawyer. Impaired/Over 80 cases are often won on procedural irregularities and charter violations, which are very technical in nature. It is therefore in your best interest to consult an experienced criminal defence lawyer as soon as possible to help you identify viable defences.
No. This is a mandatory suspension that is imposed by the Ministry of Transportation, and it cannot be challenged.
If you are found guilty of impaired driving, being over 80 or refusing to provide breath sample, you should expect a Canada-wide driving prohibition to be imposed for a minimum of 1 year. Depending on your circumstances, you may or may not be able to shorten that time period through a program approved by the Ministry of Transportation, which will involve an installation of an Interlock device. Depending on the circumstances of your offence and the amount of prior convictions, you may be prohibited from driving for longer.
There is no way to guarantee or accurately estimate the length of time a case will take. On average and in the best case scenario, if you choose to have a trial, you can expect your case to last from 12-18 months. However, cases may take even longer depending on various factors.
The most common way to fight impaired driving charges is by alleging violations of your Charter rights and/or procedural irregularities. Some of the most common Charter violations and procedural irregularities that arise in the context of an Impaired/Over 80 investigation are:
You should always consult an experienced criminal lawyer to help you identify possible defences.
No lawyer can guarantee a result. A good lawyer will work hard to do everything possible to help you win your case, and tell you the truth when about the strength of your case, regardless of what you want to hear. The strength of your case is highly fact specific, which is why it is important to have the assistance of an experienced defence lawyer.
