Drinking and Driving – Basics

Impaired Driving, Operating a Motor Vehicle Over .08 and Refusal to Provide a Sample are the three standard charges in Canada for drinking and driving in the Criminal Code where there is no harm or death.

In most cases, the Police will charge a person with both Impaired Operation and Driving Over .08, or if a sample wasn’t given, they will charge Impaired and Refusal. You cannot be convicted of both Impaired and .08, but you could be convicted of both Impaired and Refusal.

Typically, to prove impaired operation, two things must be shown by the Prosecution. First, evidence must be called to show that an accused was either operating a motor vehicle, or in ‘care and control’ of a motor vehicle. In most cases this evidence will come from a police officer’s testimony, but can also come from other civilian witnesses. Second, the Prosecution must show that the accused’s ability to operate a motor vehicle was ‘impaired’ by alcohol or drug. Impairment may be slight or great, and is typically proven through testimony of witnesses describing the accused’s symptoms of being drunk. A poor driving pattern, an odour of alcohol on the breath, slurred speech, bloodshot eyes, fumbling for documents, or staggering while walking can all be examples used to prove impairment by alcohol. (Impairment by drugs is treated differently)

Driving over .08 is proven by the Prosecution by showing again evidence of operating or ‘care and control’ of a motor vehicle, combined with the results of the breath sample provided to Police into the ‘breathalyser’ showing the concentration of alcohol in the accused blood exceeded the threshold of eight milligrams of alcohol per one hundred millilitres of blood.

Refusal to Provide a Sample can result from either refusing to provide a sample into the roadside screening device, or from refusing to provide a sample into the ‘breathalyser’ instrument back at the police station. The Criminal Code states that unless there is a ‘reasonable excuse’, a sample must be provided when an officer has the proper grounds and so demands it. The evidence is always provided in court by an officer to show that they had the proper grounds to demand the sample and that the accused refused.

Almost every set of charges has a different set of circumstances and it is impossible to generalize all of the advice. It is important to get proper legal advice before entering a plea in court!

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