This article's factual accuracy may be compromised due to out-of-date information. The reason given is: The article is missing the significant changes to the law in this area made by Parliament in late 2018. (March 2019)
Impaired driving is the term used in Canada to describe the criminal offence of operating, having care or the control of a motor vehicle while the person's ability to operate the motor vehicle is impaired by alcohol or a drug. Impaired driving is punishable under multiple offences in the Criminal Code , with greater penalties depending on the harm caused by the impaired driving. It can also result in various types of driver's licence suspensions.
There is a related, parallel offence of driving with a blood alcohol level which exceeds eighty milligrams of alcohol in one hundred millilitres of blood (.08). The penalties are identical for impaired driving and driving with a BAC greater than .08.
The Criminal Code gives the police and peace officers a number of powers to assist in the enforcement of the applicable laws, and there are a number of presumptions that assist in the prosecution of offences.
One of the first reported criminal cases regarding drinking and driving in Canada was an Alberta decision in 1920 called R. v. Nickle. In that case, the appeal court found that the act of driving while intoxicated was an unlawful act that could support a manslaughter conviction.
In 1921, the Parliament of Canada first created a summary conviction offence for drinking and driving, called "driving while intoxicated". At the time, the courts interpreted intoxication to mean substantial inebriation, and more than just being under the influence of alcohol. The minimum penalty for the first offence was seven days in jail. The minimum penalty for the second offence was one month in jail. The minimum penalty for a third offence was three months in jail.
In 1925, Parliament amended the Criminal Code to include a new offence of driving while intoxicated by a narcotic. The offences were also amended to include "care or control" of a motor vehicle, not just driving. (See below.)
In 1930, Parliament changed the offence to a hybrid offence, giving the Crown the option to proceed with the more serious indictable offence procedure.
Difficulties arose regarding how to prove someone was in care or control of a motor vehicle, and what the test should be. In 1947, Parliament amended the Criminal Code again, adding a presumption of care or control when a person was found sitting in the driver's seat of a motor vehicle.This did not answer all of the problems regarding the test (i.e. when a person is not found in the driver's seat of a motor vehicle). Many of the court's answers to those questions remain in conflict today.
In 1951, Parliament re-worded the law, making it an offence to operate or have care or control of a motor vehicle while the driver's ability to operate the motor vehicle was impaired by alcohol or other drugs.
The breathalyzer was made into a practical police tool by Robert Frank Borkenstein in 1952, which allowed for the police to measure a person's blood alcohol concentration. The first Canadian test of the breathalyzer was in Ontario in 1954. By 1962, police were using the breathalyzer for "mass testing". However, the test was voluntary, and could only be used as confirmatory evidence.
In 1969 (fifteen years after the introduction of the breathalyzer into Canada), Parliament created an offence of driving while "over 80" (over 80 milligrams of alcohol per 100 millilitres of blood). In 1976, Parliament made the penalty the same as driving while impaired, created the offence of refusing to provide a breath sample (with the same penalties), and created laws allowing the police to use roadside screening devices.Both offences are now set out in the same section of the Criminal Code, section 320.14.
After 1976, there were additional changes to the minimum penalties, and the introduction of new offences (impaired driving causing bodily harm and impaired driving causing death).
By 2008, drinking and driving cases made up 12 per cent of all criminal charges, making it the largest single offence group. In 2008, it was estimated that 53,000 drinking and driving cases are heard every year in Canada. The conviction rate was 73 per cent, which exceeded the rate for all criminal convictions by 13 per cent. Notwithstanding the higher rate of conviction, drinking and driving cases are more likely to go to trial than any other criminal offence, and are often fought on both technical issues and alleged police violations of section 8, section 9, and section 10(b) of the Canadian Charter of Rights and Freedoms .
2008 also saw the most recent amendments by Parliament to the law on drinking and driving. The Tackling Violent Crime Act came into force on July 2, 2008. The changes included adding new evidentiary restrictions on defendants trying to raise "evidence to the contrary" regarding the presumption of a person's blood alcohol concentration, created mandatory standard field sobriety tests that can be requested by a police officer, created additional means to allow police officers to test for the possible presence of drugs in a driver's body, increased the minimum sentences to their current level ($1000 fine for the first offence, 30 days in jail for the second offence, and 120 days in jail for the third offence), and created new offences for "over 80" causing death or bodily harm and refusing to provide a sample where operation caused death or bodily harm.
If a police officer has reasonable grounds that a person has committed an offence under section 253 within the past three hours due to alcohol, they can demand that a person provide suitable breath samples into an approved instrument.The results of those samples may be introduced as evidence at a later trial. If it is later determined that the officer did not have reasonable grounds, then the taking of the breath samples violated the protection against unreasonable searches and seizures under section 8 of the Canadian Charter of Rights and Freedoms and the person can apply to have them excluded as evidence under section 24(2) of the Charter.
Police officers can obtain reasonable grounds from observations they make and information they receive, including the results of the other demands listed below.
These breath samples are typically taken at a police station by a qualified technician, after a person has been arrested.
If a person is unable to give breath samples (usually due to injuries suffered from a traffic collision), a police officer can make a demand for blood samples, under the direction of a medical doctor, and performed by the same doctor or a nurse.
If a police officer has a reasonable suspicion that a person has alcohol in his or her body, and that he or she has been operating or has had care or control of a vehicle within the past three hours, the police officer can demand that person provide a suitable sample into an approved screening device.These devices are usually calibrated to display fail if a person has a BAC above 0.1 percent, warn or caution if a person has a BAC between 0.05 and 0.1 percent, and a numerical value if the person has a BAC below 0.05 percent.
These breath samples are typically taken at the roadside by an investigating police officer. Typical observations supporting a reasonable suspicion is if a driver has an odour of an alcoholic beverage on their breath, or if they admit they had a drink.
If a police officer has a reasonable suspicion that a person has alcohol or drugs in their body, and that they have been operating or have had care or control of a vehicle within the past three hours, they can demand that that person perform physical coordination tests, referred to as Standardized Field Sobriety Tests (SFSTs). SFSTs are requested in order to allow the officer to establish "reasonable grounds" for making an approved instrument demand, by establishing that there is reasonable and probable cause which lies at the point where "point where credibly-based probability replaces suspicion"."Reasonable grounds" is necessary to sustain the use of evidence obtained from the approved instrument demand, blood demand, or drug evaluation demand, and thereby support a conviction based on that demand.
Commentary varies on whether a suspect can refuse taking SFSTs in Canada. Some sources, especially official ones, indicate that the SFSTs are mandatory, 254(2)(a) provides that, "If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle ... the peace officer may, by demand, require the person ... to perform forthwith physical coordination tests". The assertion regarding mandatory compliance with an SFST demand is based on "failure to comply with a demand", as an offence under § 254(5) of the Criminal Code, but it is unclear whether § 254(5) applies to refusal of SFSTs (provided the suspect agrees to take an approved instrument chemical test).whereas other sources are silent on FST testing. Canada Criminal Code §
There are some reports that refusal to submit to an SFST can result in the same penalties as impaired driving.[ citation needed ] Nevertheless, it is unclear whether there has ever been a prosecution under this interpretation of "failure to comply with a demand" as applied to SFSTs. Canada Criminal Code § 254(1) and (5) addresses this, but only with respect to chemical testing (breath, blood, etc.)
Of note, it is generally advised to comply with a demand to submit to the approved instrument chemical test. A legal challenge to sufficiency of "reasonable grounds" to submit to the approved instrument demand, blood demand, or drug evaluation demand, is typically addressed in court, under the Exclusionary Rule.
If a police officer has reasonable grounds that a person has committed an offence under § 253 within the past three hours due to drugs or a combination of drugs and alcohol, they can demand that the person submit to an evaluation by an evaluating officer to determine if the person is impaired by drugs or a combination of drugs and alcohol. If the evaluating officer has reasonable grounds that the person is impaired by alcohol, they can make an approved instrument demand. If the evaluating officer has reasonable grounds that the person is impaired by drugs or a combination of drugs and alcohol, they can make a demand for blood or urine samples. Fatigue toxins and effects due to illness have been held to be drugs for the purposes of the statute.[ citation needed ]
If any of the above demands are lawfully made, it is a criminal offence to fail or refuse to comply with them, unless the person can show they had a reasonable excuse.The penalties are identical to the penalties for other drinking and driving offences.
When a person gives a breath sample into an approved instrument by a qualified technician, a determination still needs to be made of what the person's BAC was at the time of the offence. That requires evidence of two things:
To work out the person's BAC at the time of giving the breath samples, the prosecutor can rely on a Certificate of a Qualified Technician, which states what the results were of the analysis of the breath samples, and is evidence of its contents.This is commonly referred to as the presumption of accuracy. It is still open for the defence to call evidence showing why the results are not accurate, leaving it for the court to weigh the evidence.
If there is no Certificate, or the Certificate is flawed, the prosecutor can always call the qualified technician to give evidence about the accuracy of the results. The prosecutor may still call the qualified technician if there is a Certificate in order to counter the defence's evidence.
Typically, the Certificate will round the BAC results down to a hundredth of a percentage (e.g. 0.116 percent is truncated to 0.11 percent).
To work out the person's BAC at the time of the offence, the prosecutor generally needs to show the following:
If the three criteria are met, then the lower of the two results is presumed to be the person's BAC at the time of the offence.This is commonly referred to as the presumption of identity.
The presumption can be rebutted two ways, depending on whether the defence is challenging the accuracy of the results. If defence is challenging the accuracy of the results, they need call evidence that shows:
The last criteria is typically met by calling reliable evidence of how much the person had to drink prior to the offence, and expert evidence of what their BAC would have been at the time of the offence as a result of the drinking evidence.
If defence is not challenging the accuracy of the results, they only need to call evidence on the last criteria, and have the expert give evidence why it would not be inconsistent with the breath sample readings.(This is typically called the "bolus drinking" scenario, primarily in Canadian jurisprudence.)
If the prosecutor is unable to rely on the presumption of identity (usually because the first reading was taken outside of the two hours), they can still "read-back" the readings by calling their own expert evidence.
A person convicted for any drinking and driving offence (which includes a refuse to comply offence) faces an automatic Canada-wide driving prohibition, and either a fine or jail sentence and the possibility of probation.
The minimum sentences are:
Drinking and driving offences are prior offences for refuse to comply offences, and vice versa.
If no one is hurt or killed, and the prosecutor is proceeding by summary conviction, the maximum sentence is 18 months of jail. If no one is hurt or killed, and the prosecutor is proceeding by indictment, the maximum sentence is 5 years of jail.
If another person suffers bodily harm because of the offence, the maximum sentence is 10 years in jail.
If another person is killed because of the offence, the maximum sentence is a life sentence.
If a person is convicted of both impaired operation/care or control and operation/care or control with a BAC in excess of 0.08 percent, the defendant can only be sentenced for one of the offences (the prosecutor chooses which one).The same does not apply if a person is also convicted of a refuse to comply offence.
A province is allowed to set up special ignition interlock device programs specifically to limit criminal driving prohibitions. Not all provinces have such specific programs, but if they do, and a person is enrolled in one, then they can drive during their prohibition period with an interlock device, beginning as follows:
Driving otherwise while on a driving prohibition is a criminal offence.
Canada is a federal state, and responsibility for road safety with respect to drunk driving falls on both Parliament and the provincial legislatures. Typically after an impaired driving offence is committed, the accused will be subject to both a prohibition imposed under federal law (criminal law) and a driver's licence suspension under provincial law. It is important to note that while Parliament may prohibit an accused from driving, in the absence of provincial legislation, this does not affect the validity of the driver's licence of the accused. Nonetheless the accused may be charged with driving while prohibited under criminal law despite possessing a valid driver's licence.
Often the provincial suspensions are more severe than the criminal prohibition. For instance many jurisdictions require the accused to complete a remedial program and participate in the ignition interlock program, failing which will result in an indefinite suspension until the conditions are met. Also an accused may be suspended from driving for medical reasons if a physician reports that the accused has a serious alcohol problem likely to result in an unacceptable risk to the public should the accused operate a motor vehicle.
The Criminal Code provides that an accused may be prosecuted for either driving while prohibited or driving while disqualified. The former refers to driving in contravention of a criminal court order of prohibition while the latter refers to driving while suspended under provincial legislation relating to a suspension for an impaired driving offence.
Administrative licence suspensions are separate from the driving prohibitions that are ordered as part of a criminal sentence. While drinking and driving are criminal offences, which is the jurisdiction of the Canadian Parliament, the provinces have jurisdiction to regulate their roads and highways (see Canadian federalism). Therefore, the provinces have the ability to administratively suspend a person's driver's licence separately from any criminal proceedings.
Licence suspensions can occur in three ways: 1) having a high BAC, but not enough to commit a criminal offence, 2) a police officer having reasonable grounds that a drinking and driving offence has occurred, and 3) being found guilty of a drinking and driving offence. Driving with a suspended licence can result in being charged with either criminal or provincial offences.
When a person blows into an approved screening device, they might not register a BAC high enough for a fail, but they will still register a significantly high BAC. The provinces deal with that situation in different ways. There may also be different type of suspensions for novice drivers who are not allowed any BAC above zero.
If an officer has reasonable grounds to believe a person has committed a drinking and driving offence, besides being allowed to arrest the person, the provinces will suspend the person's driver's licence for a period of time. The same suspensions apply if the person refuses to comply with a breath demand.
Provinces will suspend a person's driver's licence for a lengthy period of time if they have been found guilty of a drinking and driving offence, and will usually require various types of programs to be completed before or after a licence is reinstated. When programs are required to be completed, the driver is also required to pay the cost.
Blood alcohol content/concentration (BAC) is a measurement of alcohol intoxication used for legal or medical purposes. A BAC of 0.10 means that there are 0.10 g of alcohol for every 100 ml of blood which is the same as 21.7 mmol/l. A BAC of 0.0 is sober, while in the United States 0.08 is legally intoxicated, and above that is very impaired. BAC levels above 0.40 are potentially fatal.
Drunk driving is the act of operating a motor vehicle with the operator's ability to do so impaired as a result of alcohol consumption, or with a blood alcohol level in excess of the legal limit. For drivers 21 years or older, driving with a blood alcohol concentration (BAC) of 0.08% or higher is illegal. For drivers under 21 years old, the legal limit is lower, with state limits ranging from 0.00 to 0.02. Lower BAC limits apply when operating boats, airplanes, or commercial vehicles. Among other names, the criminal offense of drunk driving may be called driving under the influence (DUI), driving while intoxicated or impaired (DWI), operating [a] vehicle under the influence of alcohol (OVI), or operating while impaired (OWI).
Driving under the influence (DUI) is the crime or offense of driving, operating, or being in control of a motor vehicle while impaired by alcohol or other drugs, to a level that renders the driver incapable of operating a motor vehicle safely.
An ignition interlock device or breath alcohol ignition interlock device is a breathalyzer for an individual's vehicle. It requires the driver to blow into a mouthpiece on the device before starting or continuing to operate the vehicle. If the resultant breath-alcohol concentration analyzed result is greater than the programmed blood alcohol concentration, the device prevents the engine from being started. The interlock device is located inside the vehicle, near the driver’s seat, and is directly connected to the engine’s ignition system. It is a form of electronic monitoring.
A traffic ticket is a notice issued by a law enforcement official to a motorist or other road user, indicating that the user has violated traffic laws. Traffic tickets generally come in two forms, citing a moving violation, such as exceeding the speed limit, or a non-moving violation, such as a parking violation, with the ticket also being referred to as a parking citation, or parking ticket.
License suspension or revocation traditionally follows conviction for alcohol-impaired or drunk driving. However, under administrative license suspension (ALS) laws, sometimes called administrative license revocation or administrative per se, licenses are confiscated and automatically suspended independent of criminal proceedings whenever a driver either (1) refuses to submit to chemical testing, or (2) submits to testing with results indicating a blood alcohol content of 0.08% or higher.
A breathalyzer or breathalyser is a device for estimating blood alcohol content (BAC) from a breath sample.
Causing death by dangerous driving is a statutory offence in England and Wales, Scotland and Northern Ireland. It is an aggravated form of dangerous driving. It is currently created by section 1 of the Road Traffic Act 1988.
Many countries have adopted a penalty point or demerit point system under which a person’s driving license is cancelled or suspended based on the number of points accumulated by them over a period of time because of the traffic offences or infringements committed by them in that period. The demerit points schemes of each jurisdiction varies. These demerit schemes are usually in addition to fines or other penalties which may be imposed for a particular offence or infringement, or after a prescribed number of points have been accumulated.
A random checkpoint is a military and police tactic. In a military context, checkpoints involve the setup of a hasty roadblock by mobile truck- or armored vehicle-mounted infantry to disrupt unauthorized or unwanted movement or military activity and to check for valid identification and search for contraband, fugitives, or weapons that are not permitted in civilian hands. Random checkpoints are set up to achieve surprise, as opposed to known permanently located checkpoints, which suspects could circumvent. They are often established in locations where they cannot be observed by approaching traffic until it is too late to withdraw and escape without being observed.
A DR10 is a United Kingdom motoring endorsement issued by the Driver and Vehicle Licensing Agency (DVLA) and UK Police which means driving or attempting to drive with a blood alcohol level above the allowable limit. Following an arrest for a DR10 one can expect a ban from driving and a fine. In more serious cases, a Community Order, or a prison term of up to 6 months may be issued.
The Highway Traffic Act (HTA) is legislation in Ontario, Canada, which regulates the licensing of vehicles, classification of traffic offences, administration of loads, classification of vehicles and other transport-related issues. First introduced in 1923 to deal with increasing accidents during the early years of motoring in Ontario, and replacing earlier legislation such as the Highway Travel Act, there have been amendments due to changes to driving conditions and new transportation trends. For example, in 2009, the Act was revised to ban the use of cell phones while driving.
In United Kingdom law, dangerous driving is a statutory offence. It is also a term of art used in the definition of the offence of causing death by dangerous driving. It replaces the former offence of reckless driving. Canada's Criminal Code has equivalent provisions covering dangerous driving.
The laws of driving under the influence vary between countries. One difference is the acceptable limit of blood alcohol content before a person is charged with a crime.
Loss of rights due to criminal conviction refers to the practice in some countries of reducing the rights of individuals who have been convicted of a criminal offence. The restrictions are in addition to other penalties such as incarceration or fines. In addition to restrictions imposed directly upon conviction, there can also be collateral civil consequences resulting from a criminal conviction, but which are not imposed directly by the courts as a result of the conviction.
People driving under the influence of alcohol are referred to as drunk drivers or drink-drivers.
Drug–impaired driving, in the context of its legal definition, is the act of driving a motor vehicle while under the influence of an impairing substance. DUID, or Driving Under the Influence of Drugs, is prohibited in many countries. Several American states and European countries now have "per se" DUID laws that presume a driver is impaired if they are found to have any detectable quantity of controlled substances in their body while operating an automobile and that the driver has no doctor's prescription for the substance. This is similar to the "per se" DUI/DWI laws that presume a driver is impaired when their blood alcohol content is above a certain level. There is some controversy with "per se" DUID laws in that a driver with any detectable quantity of controlled substances may not in fact be impaired and the detectable quantity in blood or sweat may be only the remnants of drug use in days or weeks past. It is against Road traffic safety.
Field sobriety tests (FSTs), also referred to as standardized field sobriety tests (SFSTs), are a battery of tests used by police officers to determine if a person suspected of impaired driving is intoxicated with alcohol or other drugs. FSTs are primarily used in the US, to meet "probable cause for arrest" requirements, necessary to sustain an alcohol-impaired driving conviction based on a chemical blood alcohol test.
An Act to amend the Criminal Code and to make consequential amendments to other Acts, also known as Bill C-46, is an act of the Parliament of Canada that was introduced in the House of Commons by Minister of Justice Jody Wilson-Raybould in 2017, alongside the Cannabis Act. The act increases police powers related to impaired driving—including authorizing mandatory alcohol screening, without suspicion that the person is impaired—and it increases the maximum punishments for driving related offences in the Criminal Code.
Two main questions arise in the law surrounding driving after having ingested cannabis: (1) whether cannabis actually impairs driving ability, and (2) whether the common practice of testing for THC is a reliable means to measure impairment. On the first question, studies are mixed. Several recent, extensive studies–including one conducted by the National Highway Traffic Safety Administration and one conducted by the American Automobile Association (AAA)–show that drivers with detectable THC in their blood are no more likely to cause car crashes than drivers with no amount of THC in their blood. Others show that cannabis can impair certain abilities important to safe driving –but no studies have been able to show that this increases the actual risk of crashing, or that drivers with THC in their blood cause a disproportionate number of crashes. On the second question, the studies that have been conducted so far have consistently found that THC blood levels and degree of impairment are not closely related. No known relationship between blood levels of THC and increased relative crash risk, or THC blood levels and level of driving impairment, has been shown by single-crash or classic-control studies. Thus, even though it is possible that cannabis impairs driving ability to some extent, there are currently no reliable means to test or measure whether a driver was actually impaired.