In Canada, drinking and driving, or driving under the influence (DUI), are criminal offences. Refusing a breath sample or driving over 80 are serious offences administered by the Criminal Code.
An impaired driving charge requires the Crown provide proof of the driver’s inability to operate a vehicle as a result of drugs or alcohol. This proof could consist of poor driving, weaving, a collision, etc., as well as physical markers or observations made at the time of the arrest. For example, bloodshot eyes, a smell of alcohol, lack of coordination, incoherent speech and lack of comprehension serve to suggest the individual has been driving under the influence.
While impaired driving requires proof of impairment, the offence of over 80 does not. Over 80 is the presence of 80 milligrams of alcohol in 100 milliliters of blood. Driving over 80 is a criminal offence. A breath sample taken by an officer can be processed by a breathalyser machine which analyzes alcohol concentration. A blood sample is typically administered by an officer as a last resort, if it is impossible to get a breath sample.
The refusal to provide a breath sample is considered a drinking and driving offence. For the individual to be convicted, the prosecutor must provide proof that the officer’s demand for a breath sample was lawful, and that the individual declined to cooperate by providing a sample intentionally. However, there are cases where an individual is unable to provide a breath sample due to conditions such as asthma.
All drinking and driving offences come with a mandatory license suspension of at least 12 months. Furthermore, there is a minimum consequence for drinking and driving, meaning that a person convicted for any of these offences will have a permanent criminal record. The consequences for impaired driving, over 80, and breath refusal cases are the same. For a first offence, a minimum fine of $1000 is required. For a second offence, 30 days imprisonment. For each later offence, the punishment is 120 days in prison.
If the Crown decides to prosecute by indictment, the maximum prison sentence is five years, the maximum term of 18 months prescribed on summary conviction. If bodily harm is caused, no matter which offence is charged, the offence is indictable with a maximum term of 10 years in prison. If death is caused, the offence is indictable and could result in life imprisonment.
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