Impaired Driving and Over 80 (s. 320.14 (1)) Laws in Canada

Impaired driving charges consist of operating a motor vehicle, vessel, or aircraft while your ability to do so is impaired by alcohol or drugs. This offence is concerned with the effect that alcohol or drugs had on the accused’s ability to drive.

The offence is also known generally as Driving Under the Influence (DUI), however, this is an American term not used in the Criminal Code of Canada.

On the other hand, the charge of Over 80 is not concerned with impairment but rather if it can be proven that the concentration of alcohol in your blood exceeded the legal limit, which is 80 milligrams of alcohol in 100 millilitres of blood, at the time you were driving you will be convicted of the offence.

Offences under s.320.14(1) of the Criminal Code are hybrid offences. This means that depending on the circumstances of the case, the Crown can elect to proceed either summarily or by indictment.

However, offences under s.320.14(4) are straight summary offences that must be tried in provincial court.

Examples

Some common examples of impaired driving include:

• Drinking alcohol and driving your car;
• Smoking marijuana and driving your car;
• Driving with a blood alcohol concentration of 0.08 or higher
• Operating an off-road vehicle while under the influence of drugs or alcohol; and
• Taking prescription medications that can impact your ability to drive;

Defences

A strong defence to an impaired driving and Over 80 charges will depend on the individual circumstances of the case.

However, some common defences to these charges include:

• Showcasing that you consumed the drugs or alcohol after driving;
• Certificate of Analyst; and
• Any applicable Charter defence

Punishments

Impaired driving and Over 80 charges are serious offences in Canada which can often result in jail time, even for a first offence.

Depending on whether the Crown elects to proceed by indictment or summarily, the maximum punishments for impaired driving include:

• Indictment
  • Impaired driving: Up to 10-years imprisonment;
  • Impaired driving causing bodily harm: Up to 14-years imprisonment;
  • Impaired driving causing death: Up to life imprisonment.

• Summary
  • Impaired driving: Up to 2-years less a day imprisonment;
  • Impaired driving causing bodily harm: Up to 2-years less a day imprisonment.

Overview of the Offence

Impaired Driving is covered under s.320.14 of the Criminal Code:

In order to convict you of impaired driving, the Crown must prove both the actus reus and the mens rea of the offence beyond a reasonable doubt.

The Guilty Act (Actus Reus)

The actus reus of an impaired driving and over 80 charge that the Crown must prove beyond a reasonable doubt to secure a conviction is that:

• You operated a motor vehicle, vessel, aircraft or railway equipment;

Many impaired driving cases involve a motor vehicle, but this charge is not only limited to motor vehicles. As the wording of this section suggests, it can include a vessel, aircraft or railway equipment. However, it can include electric scooters, bicycles, canoes, and even hoverboards.

To be convicted of impaired driving the vehicle, vessel, aircraft or railway equipment does not need to be in motion. Rather, it is sufficient to secure a conviction under s.320.14 of the Criminal Code if you are found to be in care and control of the vehicle to the degree that you could easily set it into motion or if you have a blood alcohol and/or blood drug concentration that is equal to or exceeds the legal limit within two hours of operating your vehicle.

The Guilty Mind (Mens Rea)

The mens rea of an impaired driving and over 80 charge that the Crown must prove, beyond a reasonable doubt, to secure a conviction is that:

• You were voluntarily impaired by alcohol, drugs, or a combination thereof.

Impaired driving under s.320.14 of the Criminal Code are general intent offences, this means that where voluntary consumption of alcohol or drugs is proven, there is a rebuttable presumption that the mens rea of the offence is made out. However, the intent to be impaired can be negated in certain circumstances such as where an accused may have been drugged. Additionally, the accused does not need to have actual knowledge of the effects of the alcohol or drugs, rather, it is sufficient to prove the mens rea element under s.320.14 of the Criminal Code if there of proof of recklessness.

Impairment

In order for the police to obtain a breath sample from you, there must be present reasonable grounds for the officer to conclude that you are impaired.

The case of See R v Landes [1997] SJ 785 (SKQB) stated that the following factors should be considered when determining physical signs of impairment:

• Erratic or abnormal diving;
• Blood shot eyes;
• Watery eyes;
• Flushed face;
• Slurred speech;
• Odour of alcohol;
• Lethargic;
• Loss of motor coordination;
• Increased reaction time;
• Diminished sensory perceptions; and/or
• Inappropriate or abusive behaviour.

However, when assessing the reasonableness of an officer’s observations and grounds for making a demand, the court does not consider these factors in isolation. Rather, the court will look at the totality of the circumstances, as they are known to the officer, to determine whether the circumstances supported the officer’s belief that a breath demand was warranted. This means that if you have allergies, fatigue, sickness, any nervousness, or any behaviour signs of impairment, this may still give rise to a reasonable suspicion necessary to make a roadside demand for a breath sample. This was seen in the court’s reasoning in R v Baltzer, 2011 ABQB 84.

Impaired Driving Defences

How to Beat an Impaired Driving Charge

The defences that are available for impaired driving charges depend on the facts of your particular case.

However, some common defences to impaired driving charges include:

• Showcasing that you consumed the drugs or alcohol after driving;
• Certificate of Analyst; and
• Any applicable Charter defence

Other, less common defences, may include:

• The Defence of Necessity; and
• Involuntary Intoxication;

You Consumed Drugs/Alcohol after Driving

Under s.320.14 (5), (6), and (7) of the Criminal Code, you cannot be convicted of impaired operation where you consumed the substance in question after you stopped operating the vehicle. As such, if you are able to demonstrate that you consumed the substance in question after you stopped operating the vehicle, you could have a potential defence against s.320.14 (1) (b)(c) & (d) of the Criminal Code, which state that if your blood alcohol concentration, blood drug concentration, or a combination thereof exceeds the legal limit, you can be convicted.

Certificate of Analyst

In impaired driving and Over 80 cases, often the police will take a sample of your breath, using an approved screening device, to determine your blood alcohol level. However, it still needs to be determined what your blood alcohol levels at the time of the offence were.

To determine your blood alcohol levels at the time of the offence, the Crown may rely on a certificate of the analyst. A certificate of analyst contains the results of the analysis of your breath samples and is referred to the presumption of accuracy. This means that there is a presumption that the readings of a certificate of analyst are accurate. However, as seen in the case of R v Goldson, 2021 ABCA 193, the Crown must file the certificate of the analyst to rely on this presumption of accuracy.

The defence can call evidence to show that the results contained within the certificate of analysis are not accurate. Specifically, this would include any evidence showcasing that the approved instrument was malfunctioning or not operated properly, that this led to an incorrect reading of a blood alcohol level in excess of 0.08, and that the accused’s blood alcohol level would not have been in excess of 0.08 during the offence.

Therefore, if it can be showcased that the results are not accurate, there is no certificate, or the Crown does not file the certificate of analyst then you may have a possible defence to impairment and Over 80 charges.

Applicable Charter Defences

The Charter sets out your rights before and after arrest. In the event the police fail to abide by these rights, you may have an applicable Charter defence to your charge:

Common Charter breaches include:

• Section 8- Right to be secure from search and seizure;
• Section 9- Right not to be arbitrarily detained;
• Section 10- Right to be informed of reasons for detention or arrest:
• Section 11- General: legal rights apply to those “charged with an offence”
• Section 12- Cruel and unusual treatment or punishment

If any of your charter rights have been violated, you may be in a position to have any evidence obtained during the breach excluded.

For example, often times in impaired driving and Over 80 cases, the police often times will have you blow into an instrument and the police will have a sample of your breath. In order for the police to take this breath sample of yours, they need to have reasonable grounds to believe that you are committing an impaired driving or Over 80 offences. If there do not exist any reasonable grounds, your s.8 Charter rights will be violated. In this case, your defence lawyer can make a Charter motion to exclude any evidence gathered by virtue of the illegal search under s.24(2) of the Charter. If the motion is successful, it is likely that evidence, in this case, the breath sample, that would be needed to convict you for an impaired driving or Over 80 offences would be excluded.

The Defence of Necessity

For impaired driving cases, the case of R v LS, 2001 BCPC 462 indicated that if you or one of your passengers was at “immediate risk of physical harm, if no reasonable alternative [was] available and, if the driving is for no longer than necessary to escape the harm, the defence of necessity will succeed.” There are three elements to the defence of necessity: the accused was faced with an urgent situation involving “clear and imminent” peril, there was no “reasonable legal alternative” to the accused breaking the law, and there exists a “proportionality between the harm inflicted and the harm avoided” by the accused. However, it is important to note that in practice this defence is seldom raised.

Involuntary Intoxication

The mens rea element for an impaired driving and Over 80 charge is that you were voluntarily intoxicated. However, if you are able to showcase that you did not voluntarily consume the drugs or alcohol, for example, you were drugged, then the Crown will not be able to prove the mens rea of the offence and you cannot be convicted. It should be noted that this defence is rarely raised for impaired driving and Over 80 charges.

Impaired Driving Punishment

Impaired driving and Over 80 charges are serious offences in Canada. Even for a first-time offence, you may receive jail time depending on the circumstances of your offence.

The maximum punishments for impaired driving and Over 80 charges include:

• Indictment
  • Impaired driving: Up to 10-years imprisonment;
  • Impaired driving causing bodily harm: Up to 14-years imprisonment;
  • Impaired driving causing death: Up to life imprisonment.

• Summary
  • Impaired driving: Up to 2-years less a day imprisonment;
  • Impaired driving causing bodily harm: Up to 2-years less a day imprisonment.

Additionally, all impaired driving and Over 80 charges have mandatory minimum punishments.

This means that regardless of whether the Crown elects to proceed by indictment or summarily, you will be subject to the following penalties:

• First offence: $1,000.00 fine;
• Second offence: 30-day imprisonment; and
• Third offence: 120-day imprisonment.

In the case that your breath sample shows a “high” blood alcohol concentration, you will face additional mandatory minimum fines as follows:

• Blood alcohol concentration equal to or exceeding 120 mg of alcohol in 100 mL of blood, but less than 160 mg of alcohol in 100 mL of blood: $1,500 minimum.
• Blood alcohol concentration equal to or exceeds 160 mg of alcohol in 100 mL of blood: $2,000 minimum.

Aggravating factors, under s.320.22 of the Criminal Code, that increase the penalties for impaired driving and Over 80 charges include consideration of the following:

• Whether in the commission of the offence, more than one person was injured/killed by your impaired driving;
• You were participating in a street race;
• You had a passenger with you under the age of 16;
• Your blood alcohol concentration was excessively high;
• You were being paid for operating the vehicle;
• You were operating a large motor vehicle; and
• You were not permitted to be operating the vehicle.

You also may face an Immediate Roadside Sanction (“IRS”) pursuant to the Traffic Safety Act. An IRS is an administrative charge issued by the province that is not the same as a criminal charge for impaired driving under the Code.

However, although an IRS is not criminal, it will still significantly impede your freedom. A peace officer can issue you an IRS if:

• They believe you were impaired by drugs and/or alcohol;
• You are tested and are found to be over your legal limit of drugs and/or alcohol; or
• If you failed to comply with a demand to test your sobriety.

The penalties that are associated with an IRS can include:

• A licence suspension;
• Participation in the Ignition Interlock Program;
• Participation in mandatory education courses; and
• Fines and Tow Bills.

Frequently Asked Questions

What is the penalty for impaired driving?

The penalty for impaired driving takes into account a wide variety of factors.

However, depending on whether the Crown elects to proceed by indictment or summarily, the following penalties may apply:

• Indictment
  • Impaired driving: Up to 10-years imprisonment;
  • Impaired driving causing bodily harm: Up to 14-years imprisonment;
  • Impaired driving causing death: Up to life imprisonment.

• Summary
  • Impaired driving: Up to 2-years less a day imprisonment;
  • Impaired driving causing bodily harm: Up to 2-years less a day imprisonment

Is impaired driving a criminal offence?

Yes, impaired driving is a criminal offence under s.320.14 of the Criminal Code. Impaired driving is a serious offence in Canada that can lead to jail time, even for first offences. However, you man choose to defend your DUI.

Can I get my license back if charged with impaired driving?

Yes, you can get your license back if charged with impaired driving. However, it is important to note if you fort a first offence if you are found guilty, you will be subject to a one-year license disqualification under the Criminal Code of Canada, as well as a concurrent 1-year provincial suspension. This disqualification is a mandatory minimum sentence legislated by Parliament and is not something that can be avoided upon conviction.

However, acceptance into the Alberta Ignition Interlock Program may allow you get your license back. The Alberta Ignition Program requires you to install an ignition interlock device in your vehicle, which tests your blood alcohol concentration via your breath prior to driving.

Can I go to the US if I am found guilty of a DUI?

The decision whether to admit you to the US is discretionary on the part of the Customs and Border Protection Agent with whom you interact. This means that regardless of whether you have a criminal conviction, a Border Agent can deny your entry to the US for a variety of reasons.

That said, US Customs and Border Protection has clearly stated that a criminal conviction for impaired driving will not prevent a Canadian citizen from being allowed into the US. This is due to the fact that impaired driving is not considered to be a crime of moral turpitude. For more information on an impaired driving conviction and US travel, please consult the US Customs and Border Protection agency’s webpage.

If you are a US citizen travelling to Canada, you may be restricted from entering the country if you have been found guilty of a DUI. In some cases, Americans can gain entry to Canada with a DUI conviction by gaining approval for a Temporary Resident Permit (TRP) or Criminal Rehabilitation (CR) – however, the process can be time consuming and costly. In most instances, it is best to hire a criminal defence lawyer, like Texas DWI Lawyer Trey Porter for assistance to fight your charge prior to a conviction.

Can I be charged with Impaired Driving even if I wasn’t driving or the vehicle wasn’t moving (care or control)?

It is surprising to many people that in fact, you can be charged with Impaired Driving, and driving Over 80, even if the vehicle wasn’t moving. Technically, the charge is not “Impaired Driving” or “Driving Over 80”.  Section 253 of the Criminal Code indicates that it is an offence to “operate” or have “care or control” of a motor vehicle while impaired/over 80. Even if the charge against you says that you are charged with Driving While Impaired/Over80, you can still be convicted of the care or control portion.  This is because “Impaired Care and Control”, and “Care and Control Over 80”, are included offences of s. 253 under the Criminal Code.

Thus, even if you were not driving the vehicle, you can be convicted of Impaired Driving/Over 80 if you were in your vehicle and there was a reasonable risk that you might drive. Factors that the Court will consider in determining whether there is a reasonable risk include whether the vehicle was operational, whether the keys were in the ignition or in easy access of the occupant (you), whether you were located in the driver’s seat, etc.

In fact, if you were located in the driver seat, there is a presumption that you were in care or control of the vehicle.  That presumption can be rebutted by establishing that you did not occupy the driver’s seat for the purpose of setting the vehicle in motion.  But even then, the question reverts back to whether there was nevertheless a risk that the vehicle could become a danger because of your occupancy of it.

The minimum penalties for a care and control conviction are the same as if you were actually driving the vehicle, so equal effort must be put into a solid defence to these charges.