WHAT IS IMPAIRED DRIVING?
This charge is found under section 253(1)(a) of the Criminal Code of Canada which reads the following:
253(1) Everyone commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft, or railway equipment, whether it is in motion or not,
- while the person’s ability to operate the vehicle, vessel, aircraft, or railway equipment is impaired by alcohol or a drug;
It also clarifies under section 253(2) that it does include a combination of alcohol and a drug as well.
The Crown’s case will typically have witnesses that will provide will-say statements and testify as to the various physical symptoms and bad driving demonstrated by the accused. This may include weaving and swerving, a motor vehicle accident, odour of alcohol, bloodshot eyes, balance problems, slurred speech, and so forth. At the police station, the police may require you to complete the standardized field sobriety test. In Canada, it is a criminal offence if you exceed a certain limit of blood alcohol or are driving impaired.
Impaired driving is very dangerous and can ruin lives. The Crown has a zero-tolerance policy when it comes to drinking and driving and takes these types of cases very seriously. Unfortunately, many drivers in Ontario and Canada still drive while impaired.
Impaired driving refers to both drug impairment and alcohol impairment. If your blood alcohol concentration (bac) is between .05 and .08, there are also consequences. For drug impairment, you are considered impaired if you have over two nanograms of THC per milliliter of blood. People often think impaired driving and driving under the influence, also known as DUI, are the same thing, which in fact they are different; it is not uncommon to be charged with both at the same time.
The Difference Between Impaired Driving and Over 80
The difference between an Impaired Charge and an Over 80 charge is that an individual may be considered impaired but not blow over the legal limit. Over 80, means you have over 80 milligrams of alcohol per 100 milliliters of blood in your system. For instance, the individual may have a very low tolerance for alcohol which causes them to blow under after a couple of drinks, but still, be impaired while driving. Impaired Driving is a completely separate charge from an Over 80 in 100 ml of blood and really has nothing to do with the actual reading on the intoxilyzer. Additionally, an accused may be charged with Impaired Driving while under the influence of the drug.
How to Beat an Impaired Driving Charge
If you are charged with impaired driving in Ontario, you need to convince a judge that there is a ‘reasonable doubt’ that you were impaired. The onus is on the prosecutor to prove impairment beyond a reasonable doubt.
The arguments available to the criminal defense lawyer are manifold. It may be argued that the driving of the accused is within the range of driving behavior of someone whom is sober. It may be that the accused suffered a concussion from an accident and therefore has slurred speech and symptoms similar to that of someone impaired.
It is important for defense lawyers to scrutinize the Crown’s case and vigorously cross-examine Crown witnesses such as police officers or bystanders. The accused may also call their own witnesses that will testify that the accused was sober.
New Impaired Driving Laws in Canada
As of December 2018, there are new impaired driving laws in Canada. The Canadian government legislated stricter laws in an effort to crackdown on impaired driving and successfully prosecute a greater number of impaired drivers.
These new laws give law enforcement new and broader powers. As the law stands at the time of this article, police will now have the authority to demand a breath sample from any driver they stop. In the past, they used to need to have reasonable suspicion to take a breath sample with the screening device, which could result in a breath sample from the breathalyzer at the police station. The new legislation dispensed with this requirement of reasonable suspicion.
The new laws also dispensed with a common defence. In the past, drivers could argue they consumed alcohol just before driving, and therefore it was not absorbed. This defence is no longer available to defence counsel.
Law enforcement now also have the authority to demand oral fluid samples aka saliva, if they suspect the driver is impaired by drugs. If the driver tests positive, there could be further testing, such as a blood test.
The new laws also increased fines, and incorporate changes into the interlock program.
What Are the Penalties for Driving Impaired?
Impaired driving penalties have become increasingly harsher over the years. Impaired driving, whether alcohol or drug-impaired driving, carries significant penalties and can even include jail time. The impaired driving penalties vary, depending on the facts of your case. One major factor which affects the penalty is whether there are any previous driving charges on your criminal record. If this is your first offence, the Crown will be more lenient than your second offence, or any subsequent offence. Penalties will also be much harsher if there is an accident involving bodily harm.
Being convicted of drunk driving or drug-impaired driving by summary conviction can lead to you losing your driver's license and have your vehicle impounded. You may be required to attend treatment programs and receive a significant fine. There can also be a license reinstatement fee and mandatory participation in treatment as well as vehicle impoundment. You may also be required to install the ignition interlock. Most troubling, a conviction of an impaired driving offence will result in a criminal record and a driving prohibition. That is the main reason you will want to beat your criminal charges if you have a defence. In some cases, a Crown may offer a resolution position by pleading to a charge under the Highway Traffic Act and receive a license suspension, which might be something an accused should seriously consider accepting.
If you fall within the warning range, .05 to .08 bac, you can receive a three-day license suspension. For every subsequent offence, the penalties increase and you could require an ignition interlock device and be required to participate in the ignition interlock program.
Speak to a Lawyer Right Away
Drinking and driving or drug impaired driving charges are treated very seriously by the Crown attorney. It is critical to speak to a lawyer as soon as possible. With Impaired Driving charges there may be a strong defense, but if the wrong information is relayed to the police or you don’t know your rights, it may be detrimental to the final outcome of your case. The lawyers at Bernstein Law Group have defended countless Impaired charges successfully and will be happy to provide a free consultation if you are charged with Impaired Driving or Over 80.
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