Drinking and Driving Laws in Canada Carry Mandatory Minimums and Are Also the Most Defended Charge
Under drinking and driving laws in Canada a conviction carries a mandatory fine, a mandatory driving prohibition and a permanent criminal record, and that a second conviction carries mandatory jail. The second answer is that these cases are defended and won more often than any other criminal charge, because the police procedure is long and every step of it can be checked.
People search for a “DUI lawyer.” The Canadian term is impaired driving (DUI). It is one of the most common offences in the country, and one of the most technical.
The offences are in the federal Criminal Code of Canada. A conviction produces a criminal record. This guide covers the offences, the sentences, the arrest process and the defences.
Drinking and Driving Laws in Canada Create Three Separate Offences Plus Care and Control
Impaired driving is federal law. There are no felonies or misdemeanours; Canada uses summary and indictable offences, explained below. The law covers cars, boats, aircraft and railway equipment. There are three separate alcohol-related driving offences.
Impaired Operation
You can be convicted of impaired operation with a blood alcohol reading below the legal limit. The offence is operating a vehicle while your ability to do so is impaired by alcohol or a drug, to any degree. The evidence is the officer’s observations: slurred speech, poor balance, an odour of alcohol, weaving. Because the case rests on what one officer saw and wrote down, the officer’s notes and any in-car or station video are the first things the defence reads, and the gaps between them are where these cases are won.
Over 80
The second offence is having a blood alcohol concentration (BAC) of 80 milligrams of alcohol in 100 millilitres of blood or more within two hours of driving. How you drove is irrelevant. If the two breath samples at the station are at or over 80, that is the offence. The two-hour window also means that drinking after driving is no longer a defence unless you can show the alcohol was consumed after you stopped and you had no reason to expect a demand.
Refusing to Provide a Breath Sample
An officer with a lawful basis can demand a breath sample at the roadside or at the station. Refusing is its own offence, and it carries the same mandatory minimums as a conviction for impaired driving. Parliament wrote it that way so refusing would not be a way out of an over-80 charge. The Crown must still prove the demand was lawful and that you understood it; a demand made without grounds, or one you were physically unable to comply with, is a defence.
Care and Control
You do not have to be driving. The Code criminalizes impaired “care and control” of a vehicle. A person found in the driver’s seat is presumed to have care and control. Engine off and keys in your pocket do not rebut the presumption on their own.
Sleeping It Off
Sleeping in the car after drinking is how many care and control charges begin. The law presumes that a person in the driver’s seat is a risk of setting the vehicle in motion. To defeat the charge you have to rebut the presumption with evidence that you had no intention of driving and a plan to get home some other way. That evidence has to exist; it cannot be manufactured afterwards.
The Crown Elects Summary or Indictable, Which Sets the Maximum Sentence
Impaired driving is a hybrid offence. The Crown chooses whether to proceed summarily or by indictment, and the choice sets the maximum sentence and the procedure.
The Crown looks at the facts, the reading, whether there was a collision or injury, your driving record and any criminal history. The election is made early, often at the first appearance, and it can be negotiated. Persuading the Crown to proceed summarily on a borderline file is one of the first things defence counsel does.
Summary Conviction
Used for most first offences without a collision. The trial is in Provincial Court and moves faster. The mandatory minimums still apply, and the conviction is still a permanent criminal record.
Indictable Offence
Used where there are aggravating factors: a collision, an injury, a high reading, prior convictions. The maximum sentence rises sharply and the procedure is longer.
Mandatory Minimums Rise From a $1,000 Fine to 120 Days in Jail
The Criminal Code sets mandatory minimum sentences for impaired driving. The judge cannot go below them. The minimum depends on whether it is your first, second or third conviction.
First Offence
A minimum $1,000 fine, rising with the reading: a BAC of 120 to 159 mg carries a minimum $1,500 fine. A minimum one-year driving prohibition, enforceable anywhere in Canada. A permanent criminal record.
Second Offence
A minimum 30 days in jail, and a minimum two-year driving prohibition. The fine is no longer the main penalty.
Third and Subsequent Offences
A minimum 120 days in jail and a minimum three-year prohibition. The Crown will often seek more, and prohibitions on a third conviction can be much longer.
The Driving Prohibition
The judge’s prohibition order under the Code applies in every province and territory. Driving while prohibited is a separate criminal offence that usually results in jail.
Ignition Interlock
Depending on the province and the conviction, you may be eligible to drive during the prohibition with an ignition interlock installed. The device takes a breath sample before the vehicle will start. Entry into the program is regulated and the costs are yours. Whether you can apply, and how soon after conviction, is set by the province in which you are licensed, so the answer differs between New Brunswick and Nova Scotia even though the conviction is federal.
Maximum Sentences
By summary conviction the maximum is two years less a day. By indictment the maximum is 10 years. Those ceilings are for the worst cases.
When Jail Becomes Likely
Impaired driving causing bodily harm carries a maximum of 14 years, and jail is the usual outcome. Impaired driving causing death carries a maximum of life imprisonment.
The Arrest Follows Charter Rules, and Most First Offenders Are Released From the Station
The police must follow the Canadian Charter of Rights and Freedoms at every step, and the defence begins by checking whether they did. From the traffic stop onward, everything you say and do goes into the officer’s notes.
The Arrest
If you fail a roadside screening test, the officer arrests you, reads your rights and takes you to the station for evidentiary breath tests. You have the right to remain silent on the drive. Use it. At the station you have the right to speak to a lawyer before giving the evidentiary samples. Use that too, and do not try to talk your way out.
Bail
For a first offence without aggravating factors, the police usually release you from the station on an undertaking with conditions. If you have prior convictions or the police consider you a flight risk, you are held for a bail hearing before a judge or justice of the peace, where a lawyer negotiates the terms of release with the Crown.
The Defence Checks Every Procedural Step and Every Charter Requirement
Impaired driving law changes every few years, and the cases turn on procedure. The defence lawyer’s job is to find the step the police missed.
Reviewing the Evidence
The starting point is disclosure: the officer’s notes, the breath instrument’s calibration records, the station video, the times. Breath instruments have to be maintained and operated to a standard, and the two samples have to be taken as soon as practicable. A missed step or an unexplained delay can take the readings out of the case.
Charter Defences
Many impaired driving cases are won on Charter grounds. The stop has to be lawful. The demand has to be lawful. The right to counsel has to be given without delay. If a judge finds a breach, the readings can be excluded under section 24(2), and without the readings the Crown usually has no case.
Moving Forward
A charge is not a conviction. There are defences to impaired, over-80 and care and control charges. Do not plead guilty because you are embarrassed. Gather your paperwork and consult a legal professional before your first court date.
Under Drinking and Driving Laws in Canada the Right to Counsel Revives at the Station, and Delay Excludes the Readings
Most cases are decided by what happens at the roadside. Officers carry an approved screening device. A “fail” on it gives the officer grounds to arrest and to demand evidentiary breath tests at the station.
The evidentiary test is two samples on an approved instrument, taken as soon as practicable. Those two readings are the Crown’s case in an over-80 prosecution. Unreasonable delay between the arrest and the samples is a defence.
Section 10(b) of the Charter guarantees the right to retain and instruct counsel without delay. At the roadside that right is suspended for the screening demand, which the courts treat as an investigative step. At the station it revives in full: the police must tell you of the right and give you a reasonable opportunity to exercise it before the evidentiary tests. Failure to do so leads to exclusion of the readings under section 24(2).
Refusing either the roadside demand or the evidentiary demand carries the same mandatory minimums as an impaired driving conviction. Recent case law has confirmed that officers can make a mandatory alcohol screening demand during any lawful traffic stop without a suspicion of impairment. That makes the lawfulness of the stop, and everything after it, the ground on which the case is fought.
FAQ
What Happens If I Refuse to Take a Breathalyzer Test at the Roadside?
Refusing a lawful breath demand is a separate offence under the Criminal Code of Canada. For a first offence the mandatory minimum is a $2,000 fine and a one-year driving prohibition.
Can I Get a Criminal Record for Sleeping in My Car While Drunk?
Yes. A person in the driver’s seat is presumed to have care and control of the vehicle, engine running or not. Unless you rebut that presumption, sleeping it off in the car is a criminal charge.
Will I Definitely Go to Jail for a Second Drinking and Driving Conviction?
Yes. The Criminal Code sets a mandatory minimum of 30 days in jail for a second conviction. The Crown may seek longer depending on how recent the first conviction was.
How Does the Crown Prosecutor Decide Between a Summary Conviction and an Indictable Offence?
The Crown looks at the reading, whether there was a collision or injury, and your record. Routine first offences proceed summarily. Repeat offences and cases with a collision are more likely to proceed by indictment.