Impaired Driving – Driving Under the Influence (DUI)

In Canada, there is not a specific offence for driving under the influence (DUI). The term DUI is a term which is loosely used to describe any drinking and driving related criminal offence. It is commonly used outside of the legal and law enforcement community by the general public and news agencies.

Rather, the Criminal Code of Canada defines specific drinking and driving related criminal offences. Three of the more common ones people are charged with are Impaired Driving, Driving Over 80 (driving with excess blood alcohol), and Refusing a Breath Sample. Being charged with any of these three is considered a criminal charge, not a traffic offence.

One of the biggest mistakes people, who have been charged with a drinking and driving related criminal offence is attempting to resolve it quickly without considering the consequences. You should never plead guilty to or take a plea agreement to a DUI related offence without first speaking to an experienced Mississauga criminal defence lawyer, here at Passi & Patel. Call and speak to one of our Mississauga drinking and driving lawyers to obtain the professional legal guidance and advice you require, so you are able to make an informed decision.

The Criminal Code of Canada’s Definition of Impaired Driving & Driving Over 80

Section 253 of the Criminal Code of Canada defines drinking and driving related offences, which are summarized, as follows:

(1) Every person, who operates a motor vehicle, vessel (boat), or provides assistance in the operations of railway equipment, or an aircraft, regardless of whether or not it was in motion, commits a drinking and driving offence,

  • While the person’s ability to properly operate the vessel, vehicle, railway equipment or aircraft has been impaired by alcohol or drugs, or
  • By having consumed a large quantity of alcohol, where the concentration in the person’s blood is in excess of eighty milligram of alcohol per one hundred millilitres of blood.

(2) For further certainty, the reference of impairment by alcohol or drugs, as described in Section 253, Paragraph (1a) includes impairment by alcohol, drugs, or any combination thereof.

What Is the Difference Between Impaired Driving and Driving Over 80?

Many people do not truly understand the differences between Section 253 (1a), impairment by alcohol or drugs, and Section 253 (1b), exceeding eighty milligrams of alcohol. Basically, impaired driving is where a person’s ability to operate a motorized vehicle is impaired, most often by alcohol, but could also be impaired from drugs, or a mixture of drugs and alcohol.

vImpaired driving is one of those offences where the police have discretion to determine whether they believe a person is impaired. Typically, concerned civilians will notice a motor vehicle being operated in an unusual or unsafe manner and report the driver to the police or the police will observe erratic driving and stop the vehicle. Upon being stopped by the police, the officer will make inquiries in regards to the use of alcohol and/or drugs.

If they suspect the driver is impaired, they will request the driver provide a breath sample if they have an approved screening device with them or, if not, will transport the driver directly to the local police station to collect two samples. Refusing to provide a breath sample is a drinking and driving offence and if the driver refuses the person will be arrested and taken to the local police station.

After providing a breath sample, roadside, if the driver is impaired, they will be arrested and transported to the

local police station, where they are required to provide two additional samples. If both of the additional samples indicates impairment or driving in excess of 80 milligrams of alcohol per 100 millitres of blood, as based upon the a blood alcohol concentration (BAC), then the driver is formally charged. Keep in mind, if the BAC was over 80 milligrams, you can be charged with both Impaired Driving and Driving Over 80.

In cases where the driver was stopped for a routine traffic check, other Highway Traffic Act violation, or RIDE Program check, and the officer has grounds to suspect the driver has consumed alcohol, the office will request the drive provide a breath sample roadside, into an approved screening device. In these instances, the police normally do not believe the driver is impaired, rather the police have a suspicion the driver has consumed alcohol and is verifying they are not driving in excess of the legal limit.

If the driver fails the breath test with the roadside screening device, which is normally calibrated to fail if the BAC is over 80 milligrams of alcohol per 100 millilitres of blood, then the driver can be arrested and taken to the local police station, where two additional samples are collected. Again, if both additional samples show a concentration of alcohol in excess of 80 milligrams per 100 millilitres of blood, the driver’s BAC exceeds legal limits. The driver will be charged with Driving Over 80.

What Happens If a Driver Refuses to Provide a Breath Sample?

As previously mentioned, refusing to provide a breath sample, either roadside or after being taken to the local police station, is its own drinking and driving related criminal offence, aptly named Refusing to Provide a Sample. The consequences of being convicted for this offence, and if found guilty, are the same as if the driver had been charged and found guilty of Impaired Driving or Driving Over 80, resulting in license suspension, fines, increased insurance premiums, and potential jail time, as well as other penalties.

The Criminal Code of Canada’s Penalties for Impaired Driving and Driving Over 80

Sections 255 and 259 of the Criminal Code of Canada prescribes specific penalties for being convicted and found guilty of Impaired Driving and Driving Over 80, as noted below:

Section 255
(1) Any person, who commits an offence, as defined under Sections 253 or 254 of the Criminal Code is guilty of having committed an indictable offence, or an offence that is punishable by summary conviction, and is liable

  • Whether the offence is punishable on summary conviction or prosecuted by indictment, to the minimum punishment as follows, notably,
    1. A fine of no less than $1,000 for a first offence,
    2. A period of imprisonment no less than 30 days for a second offence,
    3. A period of imprisonment no less than 120 days for every subsequent offence.
  • Where the offence is prosecuted by indictment, to a maximum imprisonment period of five years, and
  • If the offence is punishable on summary conviction, to a maximum imprisonment period of eighteen months.

Section 259
(1) When any person is convicted for a drinking and driving related offences, as committed under Section 253 of the Criminal Code…the court sentencing the offender will, in addition to any other punishments imposed by the court for the offence, make an order from operating a vessel (boat), railway equipment, aircraft, or from operating a motor vehicle on any highway, road, street, or other public place, as the case might be,

  • For a period to not exceed three years, plus any period of imprisonment, yet not less than one year for a first offence,
  • For a period to not exceed five years, plus any period of imprisonment, yet not less than two years for a second offence, and
  • For a period to not exceed three years, plus any period of imprisonment.

Why You Should Retain Passi & Patel for Drinking and Driving Offences

The laws regarding drinking and driving criminal offences are rather complex, very technical, and complicated requiring a criminal lawyer with in-depth experience and knowledge in this area of the law. It is important to note every case is often different, with its own set of circumstances, nuances, and subtleties.

At Passi & Patel, our Mississauga criminal lawyers fully understand the consequences of being found guilty of a drinking and driving charge, and how this offence has a significant impact on a persons’ ability to travel and find and maintain gainful employment. If you, a loved one, or a friend has been charged with a drinking and driving related offence, you need experienced legal representation. Contact Passi & Patel at 647-898-8018 to schedule an in-depth case evaluation and consultation appointment with one of our Mississauga criminal lawyers, who will work hard to help you obtain the best possible results.