Impaired Driving Lawyers

What is Impaired Driving?

Impaired driving, often called a DUI, describes the criminal charges of operating a motor vehicle while impaired by alcohol or drugs, driving with a blood alcohol content (BAC) over 0.08, and refusing to provide a breath or blood sample.

Impaired operation of a motor vehicle

You may be charged with impaired driving if your ability to operate a vehicle is presumed to be impaired by alcohol or drugs. 

Impaired operation charges require evidence of impairment, including driving pattern, presentation (such as abnormal speech, red eyes, balance and coordination issues), admission of use or consumption, and the smell of alcohol on your person.

The court often relies on observations made by police officers and other civilian witnesses. Under such circumstances, observed behaviour must deviate from normal behaviour to a degree that suggests your ability to drive was impaired — but to what degree?

Degree of impairment to operate a motor vehicle must only be evident, not marked. But there’s an important distinction to note.

A fine but critical difference exists between slight impairment generally speaking, and slight impairment of your ability to drive. While one drink might undermine your ability to thread a needle or perform brain surgery, your ability to drive isn’t automatically impaired with each drink.

So the question is not whether you’re impaired to any degree. It’s whether your ability to drive is impaired to any degree by alcohol or drugs.

Driving over 0.08

Driving over 0.08 refers to operating a vehicle while having a blood alcohol content of more than 80 milligrams of alcohol per 100 milligrams of blood. A blood alcohol reading is acquired from a police breathalyzer or blood sample. A reading over 0.10 on an approved screening device will register a fail result.

Driving over 0.05

Driving over 0.05 refers to operating a vehicle while having a blood alcohol content of more than 50 milligrams of alcohol per 100 milligrams of blood. In British Columbia, a reading between 0.05 and 0.10 on an approved screening device will register a warning. Consequences for warn readings depend on the number of impaired driving offences committed in the past five years.

Refusal

Failure to comply with a breath or blood demand of a police officer will result in a charge of refusal. A refusal charge may stem from outright refusal or failure to provide a sample despite blowing into the machine.

Evidence of Impaired Driving

Impaired driving charges require evidence of impairment, including driving pattern, presentation (such as abnormal speech, red eyes, agitation, balance issues and muscle tremors), admission of use or consumption, the smell of alcohol on your person, and registering a fail on an Approved Screening Device or roadside breathalyzer.

Driving pattern

While dangerous driving may suggest impairment, swerving and traffic infractions are not the domain of impaired drivers exclusively. Poor driving is often perpetrated by those unimpaired by alcohol or drugs.

Presentation

Abnormal speech, red eyes, agitation, balance issues, or muscle tremors may indicate impairment to the degree they are usually absent. Since a police officer is unlikely to have any concept of your presentation preceding an incident, they cannot confirm whether alcohol or drugs are indeed influencing your presentation. Variables like medical and mental health conditions, attire, footwear, weather and road conditions must also be considered.

Admission of consumption

Just because you were drinking does not mean you were impaired to drive. While one drink could impede your ability to perform certain tasks, your ability to drive isn’t necessarily impaired with each drink.

Smell of alcohol

Whether, when, or how much alcohol you consumed cannot be inferred from the smell of alcohol on your person. The smell is the result of flavouring agents, not your consumption.

Registering a fail (BAC over 0.08)

Impairment cannot be inferred merely from the results of an Approved Screening Device or roadside breathalyzer, which are inadmissible in court as evidence of impairment.

Impaired Driving in the Criminal Code of Canada

Section 320.14 of the Criminal Code states that everyone commits an offence who

1. operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;
2. has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;
3. has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation; or
4. has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.

Impaired Driving Charges

If you are being investigated for impaired driving, police will almost always proceed to recommend charges to Crown Counsel upon concluding their investigation. Indeed, it’s Crown Counsel, not police nor complainants, who lay charges in British Columbia.

You should be released from police custody pending the outcome of your investigation, at which time you will receive your scheduled court date. This is not your trial date. Your lawyer will likely advise you not to attend court on this date and will instead appear on your behalf. For strategic purposes, you should not attend court unless or until your lawyer advises you to do so.

Penalties for Impaired Driving

British Columbians face consequences for driving over 0.05, with increased penalties for driving over 0.08. Consequences depend on whether it’s your first, second, or third offence in the last five years.

First offence of driving over 0.05 in five years

• Immediate three-day seizure of your driver’s license, during which you cannot drive
• Towing and three-day vehicle impoundment (costs are your responsibility)
• $200 penalty
• You must apply to have your driver’s license reinstated

Second offence of driving over 0.05 in five years

• Immediate seven-day seizure of your driver’s license, during which you cannot drive
• Towing and seven-day vehicle impoundment

Third offence of driving over 0.05 in five years

• Immediate thirty-day seizure of your driver’s license, during which you cannot drive
• Towing and thirty-day vehicle impoundment (costs are your responsibility)
• $400 penalty
• You must apply to have your licence reinstated
• Possible referral to the Responsible Driver Program (costs are your responsibility)
• Possible referral for the Ignition Interlock Program (costs are your responsibility)

Consequences for impaired driving, driving over 0.08, and refusing to provide a breath or blood sample

Cases of impaired driving, driving over 0.08 and refusal can be proceeded with through administrative processes contained in the Motor Vehicle Act or through the Criminal Code. 

Administrative consequences include:

• Immediate roadside prohibition (IRP) with a ninety-day forfeiture of your driver’s license
• Towing and thirty-day vehicle impoundment (costs are your responsibility)
• Minimum $1,000 fine for your first offence
• You must apply to have your licence reinstated
• Possible referral to the Responsible Driver Program (costs are your responsibility)
• Possible referral for the Ignition Interlock Program (costs are your responsibility)

If the case involves charges under the Criminal Code, potential consequences include:

• Mandatory thirty-day prison sentence for second convictions
• Mandatory 120-day prison sentence for third convictions
• Maximum prison sentence of ten years for impaired driving
• Maximum prison sentence of 14 years for impaired driving causing bodily harm
• Maximum life in prison for impaired driving causing death
• Minimum fine for refusing to provide a sample is $2,000
• Possible travel restrictions to the United States
• High risk insurance rates for 5 years for failure to provide a sample despite blowing into the machine.

Defending Impaired Driving Charges

Impaired driving charges require immediate legal attention. Outcomes in impaired driving cases can depend as much on the circumstances of your case as on the lawyer you hire. Retaining Pender Litigation puts not only a skilled impaired driving lawyer by your side, but our entire team at your back, bolstering your defence with our collective insight, experience and expertise. 

Ways our firm can assist you include:

• Negotiating and assessing plea bargains
• Defending you in court
• Sentencing

Plea Bargains

Sometimes it is possible to convince the Crown to drop impaired driving charges in exchange for a lesser charge, like careless driving, sparing you from criminal charges. This is called a plea bargain. Plea bargains may also help you pay less money in fines and avoid the loss of your driver’s license. Not available for all cases, plea bargains are conducted when the Crown believes there is a serious flaw in the case that would impede an impaired driving conviction. 

It is imperative that you seek legal advice before accepting a plea bargain. While plea bargains are sometimes your best option, this is not always the case. Potential consequences of plea bargains include:

• Travel restrictions to the United States
• Employment restrictions
• High risk insurance premiums
• Fines

Impaired Driving Trial Defences

Should your case go to trial, defences to impaired driving charges include (but are not limited to):

• Faulty instrument, reading or operation: Technology and those who operate it are not infallible. We can scrutinize calibration logs and maintenance records to determine whether the screening devices used by the police were working and operated correctly.
• Time delay: Canadians have the right to a hearing within a reasonable amount of time — 18 months for most criminal matters. If the judge agrees your case has taken too long to come to trial, your charges may be dismissed.
• Certificate not served: You must receive a certificate from a qualified technician to prove your blood alcohol content. If the Crown cannot prove you received this certificate in a timely manner, your charges may be dismissed.
• Inconsistencies: Reasonable doubt can often be established if there are differences in an officer’s account or those of two officers. Inconsistencies between eye witness observations and the analysis of breath or blood samples may also result in an acquittal.
• Involuntary impairment: If you were unaware the drinks you consumed contained alcohol, you were drugged, or you took a medication that affected you in an unforeseeable manner, you may be able to satisfy the judge that you were involuntarily impaired.
• Reasonable excuse for refusal: Examples of reasonable excuses for refusing or failing to provide a breath or blood sample include language barriers and health and mental health conditions.
• Violations of the Charter of Rights and Freedoms: Speaking with the police can be detrimental to your case as your statements can be used as incriminating evidence at trial. Charter applications, motions that detail the ways in which police violated your Charter rights in a criminal investigation, can be used to seek the exclusion of this evidence. Violations that may be argued in your defence include searching your car without permission and not letting you speak with a lawyer. If there is an unreasonable delay between when you are asked to provide a breath or blood sample and when you actually provide it, this may also constitute a violation of your Charter rights. When police violate Charter rights during an investigation, the evidence obtained over the course of the investigation, including the results of your tests, may be deemed inadmissible.
• Last drink: The last drink defence held that alcohol consumed right before being pulled over would not reach your blood while you were driving, but would reach it by the time your breath was tested at the police station. The Criminal Code of Canada has been updated to end the use of this defence. It now specifies that your blood alcohol content within two hours of driving will be presumed to be your blood alcohol content at the time you were driving. The onus is on you to prove your blood alcohol content surpassed the legal limit because you consumed alcohol after driving. This requires expert analysis and testimony.
• Reasonable and probable grounds: Police officers must have reasonable grounds to suspect you are impaired by drugs before demanding a drug test. As of December, 2018, police officers are empowered in certain situations to demand breath or blood samples — even without reasonable and probable grounds to suspect you are impaired by alcohol. 

Sentencing

If your case is not solved by way of a plea bargain, dismissal or acquittal, we can negotiate sentencing options with the Crown, helping you to avoid a criminal record, or ensuring your freedom is minimally curbed upon sentencing.

Learn About Impaired Driving

• What is Impaired Driving?
• Evidence of Impaired Driving
• Impaired Driving in the Criminal Code of Canada
• Impaired Driving Charges
• Defending Impaired Driving Charges