Impaired Driving

The 3 charges people are usually facing.

Section 320.14(1)(a) of the Criminal Code makes it an offence to operate a conveyance while your ability to do so is impaired to any degree by alcohol or a drug. There is no threshold. Evidence of impairment can be driving, speech, balance, or an officer’s observations, and none of it requires a number.

Section 320.14(1)(b) is the over 80 charge, and it is worded more carefully than most people realise. The offence is having a blood alcohol concentration at or above 80 mg of alcohol in 100 mL of blood within 2 hours after ceasing to operate. The Crown does not have to prove what your reading was while you were driving. That change matters, and it also opens the exception in subsection (5), which we come back to below.

Section 320.15(1) is refusing or failing to comply with a demand, without reasonable excuse. It is a separate offence, it is prosecuted as seriously as the others, and on a first offence its minimum fine is $2,000, which is double the minimum for a first over 80. Refusing is not the safe option people assume it is.

Mandatory alcohol screening changed what happens at the roadside.

Under section 320.27(1) an officer who has reasonable grounds to suspect you have alcohol or a drug in your body, and that you operated a conveyance within the preceding 3 hours, can demand a roadside breath sample, physical coordination tests, or a sample for drug screening equipment. Reasonable suspicion is a low bar, but it is a bar, and it is reviewable.

Section 320.27(2) removed that bar for alcohol. If an officer has an approved screening device in his possession, and is lawfully exercising a power to stop you, he can demand a breath sample without suspecting anything at all. That provision came in with the 2018 amendments and it is now the way most roadside demands are made.

That has shifted where the fight is. The question is less often whether the officer had grounds to demand, and more often whether the stop itself was lawful, whether the device was actually in his possession at the time, whether the sample was taken immediately as the section requires, and what happened between the roadside and the breath room.

Your licence is gone before you ever see a courtroom.

This is provincial, not criminal, and it is the part that hurts first. Under Ontario’s scheme, a driver who registers 0.08 or more, or who fails or refuses a demand, or who performs poorly on a Drug Recognition Expert evaluation, faces an immediate 90-day licence suspension, a 7-day vehicle impoundment, a mandatory education or treatment program and a $550 penalty, plus a reinstatement fee. That applies on a first occasion.

A driver in the warn range, between 0.05 and 0.079, or who fails a Standard Field Sobriety Test, is looking at a 7-day suspension and a $250 penalty the first time, 14 days and $350 the second, and 30 days, $450 and a 6-month ignition interlock condition the third.

None of that waits for a trial and none of it is a finding of guilt. It is worth reading Ontario’s own summary of the penalties early, because the arithmetic of what you lose while the case is pending often shapes how quickly you want it dealt with.

What a conviction actually costs.

The Criminal Code sets minimums that a judge cannot go below. Under section 320.19, a first offence carries a minimum fine of $1,000. That rises to $1,500 if the reading was at or above 120 mg but under 160, and to $2,000 at 160 or above. A refusal carries a $2,000 minimum on a first offence. A second offence carries 30 days in jail. A third or subsequent offence carries 120 days.

The ceilings are high. Prosecuted by indictment, impaired operation and refusal carry up to 10 years. Impaired causing bodily harm carries up to 14 years under section 320.2. Impaired causing death carries up to life under section 320.21, with the same escalating minimums attached.

Then there is the driving prohibition. Section 320.24 requires the court to prohibit you from driving for not less than 1 year and not more than 3 on a first offence, 2 to 10 years on a second, and a minimum of 3 years on each subsequent one, in every case on top of any jail term.

Ontario adds its own suspension on conviction: at least 1 year and an ignition interlock for at least 1 year on a first conviction, at least 3 years and 3 years of interlock on a second within 10 years, and a lifetime suspension on a third within 10 years, reducible after 10 years only if you meet the criteria. A fourth within 10 years is a lifetime suspension with no reduction available.

Where these cases are actually won.

The demand. If the stop was arbitrary, section 9 of the Charter is engaged. If the search for breath was unreasonable, section 8 is. Neither leads anywhere on its own, but both lead to section 24(2), and the remedy there is exclusion of the reading.

The right to counsel. Section 10(b) requires that you be told of your right to a lawyer without delay and be given a reasonable opportunity to exercise it before the samples are taken. Whether that happened is a factual question, and the answer is usually in the officer’s notes and the booking video rather than in his testimony.

The 2-hour window. Because the offence is defined by your concentration within 2 hours of ceasing to operate, the timing of everything has to be established. Where it is not, the presumption the Crown relies on can fall away.

The intervening drink. Subsection 320.14(5) is a complete answer where the person drank after they stopped driving, had no reasonable expectation of being required to provide a sample, and the consumption is consistent with having been under 80 at the wheel. It is narrow and it is real, and it is almost never raised by people acting for themselves.

The machine. Approved instruments have maintenance records, calibration checks and operator qualifications behind them. We ask for all of it. Disclosure fights in this area are routine and they are worth having.

Delay. Impaired files are often the ones that drift, and the right to be tried within a reasonable time is enforceable in its own right.

The treatment route, and where it fits.

Section 320.23 allows a court, with the consent of both the prosecutor and the accused and after considering the interests of justice, to delay sentencing so that the person can attend a treatment program approved by the province. A driving prohibition runs in the meantime.

If the program is completed successfully, the court is not required to impose the minimum punishment under section 320.19 or the prohibition order under section 320.24. It still cannot grant a discharge. For a person whose drinking is the real problem behind the charge, this is sometimes the most valuable thing on the table, and it is worth raising early rather than at sentencing.