Canadian law makes it illegal to operate a vehicle while impaired by alcohol or drugs (impaired driving) or having consumed more then 80 mg of alcohol per 100 ml of blood (over 80).
What Do You Need to Understand About DUIs
253. Every one commits an offence who operates a motor vehicle or vessel … or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,
(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
Whether you have been drinking or not, if a police officer has a reasonable suspicion that you have been, they have the right to make a demand for you to provide a breath sample (considered a search), and you are required to do so.
253. (2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle or vessel … or who has the care or control of a motor vehicle, vessel or aircraft or of railway equipment, whether it is in motion or not, has alcohol in the person’s body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.
Approved screening devices generally register one of three readings: pass (0.00-0.04), warn (0.05-0.08), and fail (higher then 0.08). If you register a “pass”, you will be sent on your way (assuming you haven’t broken any other laws). In Ontario, if you register a “warn”, you will face provincial administrative penalties (an immediate 3 day license suspension for a first occurrence). If you register a “fail”, you will be arrested and brought to a police station to provide another breath sample for a Breathalyzer that gives exact readings of your BAC. At this point or at your earliest opportunity, it's vital to contact your criminal defence lawyer in Toronto and Southern Ontario.
Police are allowed to demand a breath sample to determine whether an arrest should be made, but these results are not evidence of intoxication at trial, they only form part of the reasonable and probable grounds for arrest. (R. v. Bernshaw [1995] 1 S.C.R. 254).
Once at the station, you will be given your right to counsel before you provide additional breath samples. You are required by law to provide a breath sample and failure to do so (known as failure to blow) is an offence that carries the same penalty as impaired driving/over 80.
253. (5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section.
If at this point your BAC registers over the legal limit, you will be charged and likely released (assuming no one was seriously injured as a result of the offence).
It is always advisable to consult a lawyer for criminal charges. Navigating the criminal justice system on your own may be possible, but the best criminal lawyers have expert knowledge of the various options and strategies which may be available to you and which may benefit your defence.
If convicted of impaired driving, over 80, or failure to blow, the mandatory minimum penalty is a $1000.00 fine and a one-year driving prohibition. Also, the conviction will be registered on your criminal record.
Drinking and driving is considered a malum prohibitum offence (as opposed to malum in se). This means that drinking and driving is not considered a crime of moral turpitude, rather, it is a crime because it is conduct that constitutes an unlawful act by virtue of a statute (the Criminal Code of Canada). We know this because driving with a blood alcohol concentration (BAC) of under 80 mg of alcohol per 100 ml of blood is not a criminal offence, it is only illegal if your BAC is over the legal limit. However, this distinction likely does not apply in cases of drunk driving causing bodily harm or death because there is a moral blameworthiness that we as a society attribute to the act.
Drining & Driving, Criminal Lawyers
Please remember that all of this starts with you making a choice to drink and drive. Even if you do not feel impaired and feel you have your wits about you, your BAC can still be over the legal limit so if you are going to drink make sure you have an alternative means of transportation.
Robert Karrass is the Principal at Karrass Law and specializes in the areas of criminal law, administrative/regulatory law, and appeals.