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Impaired Driving / Over 80 (the "DUI offences")

Impaired Operation or Care and Control of a Motor Vehicle ("Impaired") and Operation or Care and Control of a Motor Vehicle with Over 80mg of Alcohol in 100mL of Blood ("Over 80") are two of the most commonly charged offences in Canada. The so-called "DUI offences" make up over 6% of all criminal charges in Ontario. These offences are also among the most commonly charged offences against persons without a criminal record.

People charged with the "DUI offences" face statutory mandatory minimum sentences if convicted. As a result, drinking and driving offences are often hard fought cases where even the most technical details are hotly contested at trial.

The mandatory minimum sentence for a first "DUI offence" is a $1000 fine and a 12 month driving prohibition. The mandatory minimum sentence for a second "DUI offence" is 30 days in jail and a two year driving prohibition (although the driving suspension may be even longer under the Highway Traffic Act). The mandatory minimum sentence for a third or subsequent "DUI offence" is 120 days in jail and a three year driving prohibition (although the driving suspension may be even longer under the Highway Traffic Act. In all cases, if a person is convicted of a "DUI offence", they receive a criminal record that can adversely impact their employment prospects, their ability to travel, etc.

The potential penalties are even more significant if anyone is injured or killed in a drinking and driving related accident.

"Impaired" and "Over 80" are often charged together, but there are significant differences in terms of how these offences are proven in court.

"Impaired" is an offence under section 253(1)(a) of the Criminal Code. This section makes it an offence to operate or be in care and control of a motor vehicle while impaired by alcohol, or a drug, or a combination of alcohol and a drug. Whether or not you are driving while impaired is not determined by your blood alcohol concentration, though this may be a relevant consideration that a judge can weigh in assessing whether or not you were driving impaired, presuming that toxicology evidence is lead to support this inference. Impaired driving allegations are generally proven through evidence of poor driving, for example weaving in your lane, evidence of a car accident, driving excessively fast or excessively slow, etc., and/or through evidence of impairment of your motor skills and co-ordination, for example slurred speech, stumbling or staggering while walking, swaying while standing, difficulty in following instructions, etc. Where it is reasonably believed that a drug may be contributing to a person's impairment, a demand for a drug recognition evaluation can be made. Following a drug recognition evaluation, some subjects will be required to provide urine samples which can then be used to demonstrate the presence of a drug in the person's system to support an inference of impairment. Importantly, a person can be impaired by alcohol while still having a blood alcohol concentration that is below the legal limit. The leading case on impaired driving is R. v. Stellato, [1994] S.C.J. No. 51, which states that proof of even slight impairment of driving is sufficient to prove impaired driving under section 253(1)(a) of the Criminal Code. However, it is important to note that impairment must be proven beyond a reasonable doubt in a criminal court. Thus, R. v. Stellato stands for the fact that proof of slight impairment of driving is sufficient, but it does not stand for the notion that slight proof of impairment of driving is sufficient. Therefore, allegations of impaired driving can often be challenged by showing an alternative explanation for the driving conduct observed or by showing that the officers' observations of "impairment" are inconsistent with the video evidence in the case, just to name a couple of potential defences.

"Over 80" is an offence under section 253(1)(b) of the Criminal Code. This section makes it an offence to operate or be in care and control of a motor vehicle with over 80mg of alcohol in 100mL of blood. This is what your breath test results are primarily used for, proving the "over 80" offence. This offence is far more technical in nature than the "impaired driving" offence. In order to prove this offence, the Crown prosecutor has to present admissible evidence of your blood alcohol concentration at the time of driving. This offence can be defended by applying to exclude the breath samples or by showing that the breath samples cannot accurately show the person's blood alcohol concentration at the material time of driving.