With the holidays coming up, many people are looking forward to spending time with their loved ones over cocktails, wine, and dinner. But while these celebrations are part of what makes this time of year so special, they can also lead to problems if you get behind the wheel after having a little too much to drink.
Under Ontario’s Highway Traffic Act, impaired driving is a serious offence that can lead to immediate penalties — including a temporary license suspension and a $250 fine. For those who have been charged for the same offence in the past five years, the penalty is even greater.
Understanding impaired driving charges can help you avoid a situation where you are legally considered to be driving impaired, and knowing your rights can help you figure out how what your legal options are if you are charged.
What is Impaired Driving?
There are a lot of common misconceptions about impaired driving, and having a solid understanding of what the charge means in Ontario is essential for all drivers. Impaired driving is often referred to as “drunk driving,” “driving under the influence,” or simply “DUI.”
This leads many drivers to believe that they can’t be charged with a DUI if they’ve only had a glass or two of wine or beer with dinner. If you don’t feel drunk, you’re probably good to go, right?
But Ontario law actually has a fairly strict definition of what counts as impaired driving. Anyone can be charged with impaired driving if they are found to be driving at or over 80/.08 Blood Alcohol Concentration (BAC) — or if police deem that you are operating a motor vehicle (this is an important distinction, and one we will return to later).
How Do Police Determine If You are Driving Under the Influence?
Your BAC is determined by a breathalyzer test, which calculates the number of milligrams of alcohol per 100 millilitres of blood. Having a BAC of .10%, for example, would mean that there is one part alcohol for every 1,000 parts blood.
Typically around four drinks are needed to put one’s BAC at .08, but everyone’s body is different, and age, weight, gender, whether you’ve eaten anything and timing of consumption all play into the body’s absorption of alcohol. This means that one person may be able to drink two glasses of beer and be well below .08, while another may not be able to drink even one glass of wine and still be able to drive. This is why it is always best to play it safe.
Contrary to popular belief failure to provide a breath sample in Toronto is also a legal offence. If the police pull you over and ask for a breath sample and you refuse to give it to them, you’ll be charged with failure to comply with a police demand, which will end up on your permanent criminal record.
What Should You Do If the Police Pull You Over?
If the police pull you over and ask for a breathalyzer sample, you should give it to them.
Ontario law does not require that the police have a suspicion that you are impaired before pulling you over, and contrary to popular belief you are not allowed to get legal counsel before undergoing the roadside test. Failure to cooperate can lead to further charges, so it’s best to do what the officer asks of you.
At the same time, you do not need to provide any more information that necessary. The police have the right to ask for a test and to check your license and registration, but you are under no obligation to admit guilt even if you test about .08.
At this point, you will likely be taken to a police station and let out on bail. In some circumstances (for example, if you are a repeat offender or are also facing other charges) there may be a bail hearing, in which case it is essential to have a criminal defence lawyer on hand to help you argue your case.
Can Impaired Driving Charges Be Fought in Court?
The good news is that just because you have been charged with impaired driving doesn’t mean you will necessarily be convicted. With the help of the right DUI lawyer in Toronto it is possible to successfully fight DUI charges so you don’t have to face license suspension, fines, and a permanent criminal record.
There have been many cases where an individual charged with driving at or over 80 has not been convicted, usually for one of the following reasons:
- The police failed to respect your constitutional rights during or after the arrest
- Proper procedures were not followed
- You were not actually driving when the police arrived (the law says you can be charged with impaired driving if you are over .08 while operating a motor vehicle, and sometimes police will attempt to charge people who are in their car but are not driving — in such cases, it is possible to argue you were not, in fact, operating the vehicle)
The important thing to bear in mind is that being charged is not tantamount to being convicted. Cooperating with the police but not admitting to anything before speaking with your lawyer is always the most sensible way to handle DUI charges or charges of any kind.
With the right criminal defence lawyer, you can contest the charge in court and you may be able to clear your name (if you are interested in learning more, our criminal law FAQ contains a lot of information about your rights and responsibilities).
The holidays are a time of joy and celebration, and for many people enjoying alcohol is an essential part of the holiday feast. But consuming alcohol comes with risks, and Canada has the unfortunate distinction of having one of the highest rates of impaired driving fatalities in the world.
The easiest way to ensure impaired driving and impaired driving charges will not affect your life is simply to make sure you always have a designated driver. But if you are charged with this offence, make criminal defence lawyer Jeffrey I. Reisman your first call.