Impaired and Driving over 80 in Ontario
Being arrested for impaired driving and driving with a blood alcohol of more than 80 mg/100 mg of blood are serious charges with far reaching consequences.
Not only are you likely to lose your driver’s license, your auto insurance rates will skyrocket and you may find yourself barred from entering the United States or other countries because of your resulting criminal record.
Impaired driving means your capacity to operate a car (or boat or other vehicle) is clouded by alcohol, prescription or recreational drugs or a combination of all three. That impairment does not have to be confirmed by a breath test or blood test but can be determined by the evidence of eye witnesses and or video evidence.
Driving over 80 is found being in care and control over a motor vehicle while your blood alcohol level exceeds the legal standard of 80 mg per 100 mg of blood. It is determined by a blood test or breathalyzer sample.
In both cases there is a procedure and standards of evidence collection which must be followed to ensure fairness and transparency in the judicial process.
Here are some cases we’ve been involved in: OUR WINNING RECORD
Impaired Driving / Over 80: Criminal Code of Canada
253.(1) Every one 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,
(a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
For greater certainty
(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(a) includes impairment by a combination of alcohol and a drug.
R.S., 1985, c. C-46, s. 253; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 59; 2008, c. 6, s. 18.
Definitions
254.(1) In this section and sections 254.1 to 258.1,
analyst (analyste)
analyst means a person designated by the Attorney General as an analyst for the purposes of section 258;
approved container (contenant approuv)
approved container means
(a) in respect of breath samples, a container of a kind that is designed to receive a sample of the breath of a person for analysis and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada, and
(b) in respect of blood samples, a container of a kind that is designed to receive a sample of the blood of a person for analysis and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada;
approved instrument (alcootest approuv)
approved instrument means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada;
approved screening device (appareil de d’tection approuv)
approved screening device means a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that is approved for the purposes of this section by order of the Attorney General of Canada;
evaluating officer (agent valuateur)
evaluating officer means a peace officer who is qualified under the regulations to conduct evaluations under subsection (3.1);
qualified medical practitioner {m&squo;decin qualifi)
qualified medical practitioner means a person duly qualified by provincial law to practise medicine;
qualified technician (technicien qualifi)
qualified technician means,
(a) in respect of breath samples, a person designated by the Attorney General as being qualified to operate an approved instrument, and
(b) in respect of blood samples, any person or person of a class of persons designated by the Attorney General as being qualified to take samples of blood for the purposes of this section and sections 256 and 258.
Testing for presence of alcohol or a drug
(2) 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 or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:
(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and
(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
Video recording
(2.1) For greater certainty, a peace officer may make a video recording of a performance of the physical coordination tests referred to in paragraph (2)(a).
Samples of breath or blood
(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person
(a) to provide, as soon as practicable,
(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood, or
(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood; and
(b) if necessary, to accompany the peace officer for that purpose.
Evaluation
(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person's ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.
Video recording
(3.2) For greater certainty, a peace officer may make a video recording of an evaluation referred to in subsection (3.1).
Testing for presence of alcohol
(3.3) If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if a demand was not made under paragraph (2)(b) or subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, a sample of breath that, in the evaluating officer's opinion, will enable a proper analysis to be made by means of an approved instrument.
Samples of bodily substances
(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable,
(a) a sample of either oral fluid or urine that, in the evaluating officer’s opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or
(b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine whether the person has a drug in their body.
Condition
(4) Samples of blood may be taken from a person under subsection (3) or (3.4) only by or under the direction of a qualified medical practitioner who is satisfied that taking the samples would not endanger the person's life or health.
Failure or refusal to comply with demand
(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.
Only one determination of guilt
(6) A person who is convicted of an offence under subsection (5) for a failure or refusal to comply with a demand may not be convicted of another offence under that subsection in respect of the same transaction.
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.
Regulations
254.1(1) The Governor in Council may make regulations
(a) respecting the qualifications and training of evaluating officers;
(b) prescribing the physical coordination tests to be conducted under paragraph 254(2)(a); and
(c) prescribing the tests to be conducted and procedures to be followed during an evaluation under subsection 254(3.1).
Incorporated material
(2) A regulation may incorporate any material by reference either as it exists on a specified date or as amended from time to time.
Incorporated material is not a regulation
(3) For greater certainty, material does not become a regulation for the purposes of the Statutory Instruments Act because it is incorporated by reference.
2008, c. 6, s. 20.
Punishment
255.(1) Every one who commits an offence under section 253 or 254 is guilty of an indictable offence or an offence punishable on summary conviction and is liable,
(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,
(i) for a first offence, to a fine of not less than $1,000,
(ii) for a second offence, to imprisonment for not less than 30 days, and
(iii) for each subsequent offence, to imprisonment for not less than 120 days;
(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18 months.
Legal Rights in Canada
Marginal note:Life, liberty and security of person
- Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Marginal note:Search or seizure
- Everyone has the right to be secure against unreasonable search or seizure.
Marginal note:Detention or imprisonment
- Everyone has the right not to be arbitrarily detained or imprisoned.
Marginal note:Arrest or detention
- Everyone has the right on arrest or detention
- (a) to be informed promptly of the reasons therefor;
- (b) to retain and instruct counsel without delay and to be informed of that right; and
- (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
Marginal note:Proceedings in criminal and penal matters
- Any person charged with an offence has the right
- (a) to be informed without unreasonable delay of the specific offence;
- (b) to be tried within a reasonable time;
- (c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
- (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
- (e) not to be denied reasonable bail without just cause;
- (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
- (g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
- (h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
- (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
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