DUI, Impaired Driving & Over 80
Toronto DUI, Impaired Driving, and Over 80 Lawyer
DUI, impaired driving, and “Over 80” charges affect individuals of all walks of life. Having one extra glass of wine at dinner can result in a criminal conviction, the loss of your driver’s license, and having to pay thousands of dollars in higher insurance premiums. Courts, the Prosecution and society as a whole take drinking and driving cases very seriously. This has resulted in very severe penalties for those convicted of drinking and driving. In light of the potential consequences stemming from an impaired driving conviction, it is very important to choose the right criminal lawyer. Brian Weingarten is a Toronto DUI lawyer with a thorough understanding of the technical requirements and defences to impaired driving charges, and he has successfully defended clients charged with impaired driving related charges.
What DUI and Impaired Driving Offences are Found Within the Criminal Code?
The Criminal Code creates a number of impaired driving related offences. These include:
- Driving/operating a conveyance while impaired by alcohol;
- Driving/operating a conveyance while impaired by a drug (prescription or illegal);
- Operating/operating a conveyance a vehicle with an alcohol concentration over 80 milligrams in 100 milliliters of blood (Over .08);
- Refusal to provide a breath sample.
The Code also contains more serious impaired driving related offences concerning impaired operation causing bodily harm, and impaired operation causing death.
What Does the Crown Have to Prove to Secure an Impaired Driving Conviction?
It should be noted that impaired operation/ impaired care and control, is a distinct offence from operating a motor vehicle/conveyance over “80.”
In order to be convicted for operating a vehicle while impaired by alcohol, the Crown must prove that the accused: 1) had care or control over the vehicle; 2) his or her ability to operate the vehicle was impaired by alcohol or a drug.
Care or control does not necessarily mean that the accused actually drove or attempted to drive the vehicle. Caselaw has established that care or control involves the accused performing some act involving the vehicle or its fittings and creating a realistic risk of danger to persons or property.
The threshold for establishing impaired driving is quite low. Caselaw has held that a conviction for impaired driving may follow where the accused’s driving was impaired, even to the slightest degree by alcohol. If the accused’s driving can be explained by fatigue as well as alcohol consumption, he or she can still be convicted of impaired driving.
My Breath Test Readings Were “Over .08,” Shouldn’t I Just Plead Guilty?
“Over 80” charges are highly technical offences under the Criminal Code. I always recommend consulting with a lawyer before deciding to plead guilty to any charge. Every “Over 80” case is unique and there are a number of technical, scientific and legal considerations that must be closely analyzed before deciding whether or not to plead guilty.
Section 320.14 outlines the various impaired operation offences:
Operation while impaired
320.14 (1) Everyone commits an offence who
(a) 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;
(b) subject to subsection (5), 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;
(c) subject to subsection (6), 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
(d) subject to subsection (7), 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.
As a result of amendments to the criminal code, various presumptions were removed. It is now an offence to have a blood alcohol concentration above 80 mg per 100ml of blood, within 2 hours of ceasing to drive a motor vehicle/conveyance.
The Code also creates an evidentiary presumption in s 320.31(1), whereby if a person’s breath samples are obtained in accordance with the statutory preconditions, the sample is conclusive proof of the person’s blood alcohol concentration at the time of the test.
The Code also contains a second presumptions concerning breath samples taken outside of the two hour window. The code provides that if samples are taken outside of the two hour window, and the results are equal to or exceed 20 mg of alcohol per 100ml of blood, the person’s blood alcohol concentration is presumed to be this result plus an additional 5 mg for each 30 minutes in excess of the two hours. This section essentially provides for a statutory “read back” of blood alcohol concentrations outside of the two hour window.
In light of these presumptions, it is recommended that you seek legal advice concerning any possible defences, and to fully canvass the technical requirements that the Crown must prove under the Code.
What are Some Defences to an “Over 80” Charge?
Due to the highly technical nature of the impaired driving provisions, the failure to comply with one of these requirements may afford a complete defence to the charges. There are a number ofdefences that may be raised in impaired and “Over 80” cases. These might include:
• Failure by the Crown to prove identity (ie. that the accused was the one in care and control of the motor vehicle/conveyance)
• A breach of the accused’s right to counsel under s. 10(b) of the Charter;
• The lack of reasonable and probable grounds by the police to make the breath demand or stop the vehicle;
• Unreasonable delay in bringing the case to trial;
• Breaches of the accused’s right against unreasonable search and seizure where impermissible strip searches are conducted;
There is also a statutory defence to an “over 80” charge built into section 320.24(5) of the Criminal Code. This is a very technical defence, and required the accused to satisfy three requirements:
(5) No person commits an offence under paragraph (1)(b) if
(a) they consumed alcohol after ceasing to operate the conveyance;
(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and
(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.
The code provides a similar defence for those charged with having a blood/drug concentration above that prescribed by law. These sections provide:
Exception — drugs
(6) No person commits an offence under paragraph (1)(c) or subsection (4) if
(a) they consumed the drug after ceasing to operate the conveyance; and
(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of a bodily substance.
Exception — combination of alcohol and drug
(7) No person commits an offence under paragraph (1)(d) if
(a) they consumed the drug or the alcohol or both after ceasing to operate the conveyance;
(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of a bodily substance; and
(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration less than the blood alcohol concentration established under paragraph 320.38(c).
What Are the Penalties for Registering in the Warn Range (.05 to .08) at a Roadside Stop?
Recent amendments to the Highway Traffic Act have enacted penalties for Ontario drivers who register a blood alcohol level in the “warn rage” (.05 to .08). Registering in the warn range may result in a number of consequences without a right of appeal. Some of the consequences are as follows:
1st Time: A 3-day license suspension; and a $150 administrative monetary penalty to reinstate your license.
2nd Time: (within 5 years): A 7-day license suspension; a mandatory alcohol education program; and a $150 administrative monetary penalty to reinstate your license.
3rd Time: (within 5 years): A 30 day license suspension; mandatory participation in an alcohol treatment program; a 6 month ignition interlock condition placed on your license; and a $150 administrative monetary penalty to reinstate your license.
What are the Penalties Under the Criminal Code for a DUI, Impaired Driving or an “Over .08” Conviction?
Convictions for impaired and “over .08” charges are quite severe. The consequences under the Criminal Code are as follows:
320.19 (1) Everyone who commits an offence under subsection 320.14(1) or 320.15(1) is liable on conviction on indictment or on summary conviction
(a) to the following minimum punishment, namely,
(i) for a first offence, a fine of $1,000,
(ii) for a second offence, imprisonment for a term of 30 days, and
(iii) for each subsequent offence, imprisonment for a term of 120 days;
(b) if the offence is prosecuted by indictment, to imprisonment for a term of not more than 10 years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than two years less a day.
(2) Everyone who commits an offence under subsection 320.14(4) is liable on summary conviction to a fine of not more than $1,000.
Minimum fines for high blood alcohol concentrations
(3) Despite subparagraph (1)(a)(i), everyone who commits an offence under paragraph 320.14(1)(b) is liable, for a first offence, to
(a) a fine of not less than $1,500, if the person’s blood alcohol concentration is equal to or exceeds 120 mg of alcohol in 100 mL of blood but is less than 160 mg of alcohol in 100 mL of blood; and
(b) a fine of not less than $2,000, if the person’s blood alcohol concentration is equal to or exceeds 160 mg of alcohol in 100 mL of blood.
Minimum fine — subsection 320.15(1) (Refusal to provide a breath sample)
(4) Despite subparagraph (1)(a)(i), everyone who commits an offence under subsection 320.15(1) is liable, for a first offence, to a fine of not less than $2,000.
If I Am Convicted of Impaired Driving or “Over .08” Is It Possible to Get My License Back Sooner?
Under s. 320.24(1) of the Criminal Code, a Judge is required to impose a mandatory driving prohibition. For, example, the minimum probation for a first offence is 1 year, with a maximum prohibition of 3 years. The Judge can also dictate whether the offender may be eligible to register for early reinstatement of their driving privileges under the provincial Interlock program. Under s. 320.24(10), the sentencing Judge has discretion to set a minimum absolute prohibition period.
Under Ontario law, the default license suspension period for an impaired or “over .08” conviction is 1 year. After this period, an ignition interlock condition will remain on your license for an additional year. However, there are two different “streams” that allow for early license reinstatement.
Stream A will only apply to drivers who plead guilty and are sentenced within 90 days (must occur by the 89th day) of the date of the offence. If one decides to plead guilty within this period of time, the minimum license suspension may be reduced to 3 months, with a further 9 month ignition interlock condition. In order to qualify for Stream A, the accused driver must complete the assessment component of the Remedial Measures (Back on Track) Program before the 3 month minimum license suspension period expires. Drivers must also install the ignition interlock device on their vehicle within 30 days of their conditional license reinstatement.
Drivers who plead guilty to an impaired driving charge 90 days or more after the date of the offence, or those who are found guilty after trial, may still qualify for a reduced license suspension under Stream B. The conditions for early license reinstatement are the same as Stream A. However, under Stream B, the minimum license suspension period is 6 months. The ignition interlock condition will also remain on your license for 12 months.
What If I Do Not Want to Install the Ignition Interlock Device on My Vehicle?
Drivers who choose not to install in the ignition interlock device on their vehicle will have their license suspended for 1 year. You will also have to wait another year before the ignition interlock condition expires. Practically, if you do not wish to install the interlock device, you will be unable to drive for 2 years. Importantly, you must still complete the remedial measures program (Back on Track) to be able to drive at the conclusion of the suspension/interlock condition period, regardless of the decision to install the interlock device.