Impaired Driving

You might be considered unsafe to operate a vehicle if you are impaired by:

1. Alcohol
2. Illegal drugs
3. Legal drugs, including prescription and over-the-counter medications

1. Alcohol

Under Canadian federal law, you are over the legal drink drive limit if your blood alcohol content (BAC) is equal to or exceeds 80 milligrams of alcohol in 100 milliliters of blood. This will register a reading of 0.08 or over on an approved screening device. This is considered a ‘fail’ reading.

In British Columbia, there are also consequences if you register between 50 and 79 milligrams of alcohol in 100 milliliters of blood. This is considered a ‘warn’ reading.

2. Illegal drugs

Under Canadian federal law, you cannot operate a vehicle with any detectable amount of LSD, psilocybin, ketamine, cocaine, PCP or methamphetamines in your blood. The prohibited level for GHB is 5mg or more per litre of blood. The prohibited level of THC (found in cannabis) is two nanograms (ng) per ml of blood. The consequences are more serious if you have five nanograms per ml of blood.

3. Legal drugs

You can face penalties if you operate a vehicle while impaired by legal substances such as prescription drugs or over-the-counter medication. These drugs can impact your vision, concentration and motor skills, particularly when combined with alcohol or other medications.

There are no set limits as with alcohol, cannabis and other illegal drugs. But charges could be based on witness evidence, police observations and medical advice.

Impaired driving laws Canada

 Above we’ve outlined the ways in which you might be impaired while driving. But what offences could you be charged with?

The exact offences are outlined under the Criminal Code. They include:

• Driving while ability is impaired by alcohol or drugs
• A blood alcohol concentration of 80 mg of alcohol per 100ml of blood or more within two hours of ceasing to operate a vehicle
• A blood drug concentration that is equal to or exceeds the blood drug concentration for that drug within two hours of ceasing to operate a vehicle
• Causing bodily harm while driving while impaired by alcohol or drugs
• Causing death while driving while impaired by alcohol or drugs
• Failing or refusing to provide a sample of breath or blood without a reasonable excuse

In British Columbia, you can be charged under the Motor Vehicle Act for impaired driving, rather than the Criminal Code. This includes if you register a reading of 0.05 to 0.08 on an approved screening device (ASD).

What is the punishment for impaired driving in Canada?

If someone is found guilty under the Criminal Code, the penalties vary depending on what offence they are convicted of, and whether they have previous convictions for impaired driving.

Driving while impaired by alcohol or drugs (or both) carries a minimum $1,000 fine, but a maximum penalty of 10 years’ imprisonment – even for a first offence. The minimum penalty increases to 30 days’ imprisonment for a second offence, and 120 days’ imprisonment for a third offence.

Sentences are slightly different for those who are caught driving with over 2ng but less than 5ng of THC per ml of blood within two hours of driving. In these cases, defendants can expect a fine of $1,000.

Those who refuse to provide a sample are fined a minimum of $2,000.

Sentencing for impaired driving causing bodily harm ranges between two and 14 years’ imprisonment. The maximum sentence for impaired driving causing death is life imprisonment.

Immediate roadside prohibitions

Police officers in British Columbia have the option of issuing an immediate roadside prohibition (IRP), as opposed to charging someone under the Criminal Code of Canada.

This means you will face a different set of penalties than those described above. These include:

• A driving ban lasting between three and 90 days
• A fine
• Towing and impound costs
• Referral to the Responsible Driver Program
• Referral to the Ignition Interlock Program

The exact penalties depend on whether you register a ‘warn’ or a ‘fail’ reading, and whether it is your first, second or third offence.

You can read all about the impaired driving charges in BC here.

Impaired driving statistics

According to the government, impaired driving is the legal criminal cause of death and injury in Canada.

In 2019 alone, there were more than 85,000 impaired driving incidents reported by the police. The rate of alcohol-impaired driving increased by 15% from the previous year, and the rate of drug-impaired driving rose by 43%. The latter may be largely explained by new police powers to screen for drugs. These were implemented following the legalization of cannabis in 2018.

What happens when you are stopped for impaired driving in BC?

Police officers can stop you while driving to check that you are sober. The police do not need a reason to stop you. You might be pulled over at a DUI checkpoint, after an accident, or simply at random.

Police officers can perform tests to check that you are not impaired by alcohol or drugs. This includes:

1. A Breath test

You can be asked to breathe into an approved screening device to check for alcohol. In the past, the police could only ask you to take a breath test if they held a reasonable suspicion that you were impaired by alcohol. However, this is no longer the case. Police can ask anyone operating a vehicle in the past three hours to provide a sample of breath. You cannot refuse a breath test without good reason.

2. Standardized Field Sobriety Test

You can also be asked to complete a Standardized Field Sobriety Test (SFST). This includes doing things like balancing on one leg and walking in a straight line. You cannot refuse to participate in a SFST without good reason

3. A Saliva Test

Due to recent technological innovations, you can also be asked for a saliva sample to check for traces of drugs. This is known as an oral fluid sample. However, police officers must have a reasonable suspicion that you are impaired by drugs. You cannot refuse an oral fluid test without good reason.

You are not entitled to speak to a lawyer before taking any of these tests. If you refuse a test or you fail to provide a sufficient sample, you could be charged with a separate criminal offence.

Symptoms associated with impaired driving

The most commonly observed forms of impairment in relation to drug driving are:

• Red eyes
• Muscle tremors
• Agitation
• Speech patterns

If a driver is exhibiting any of these symptoms, a police officer will have reasonable grounds to request an oral fluid sample. There will also be grounds if the vehicle smells of narcotics (such as cannabis) or drugs can be seen through the windows.

Signs of alcohol impaired driving include:

• Erratic driving
• Smell of alcohol on driver’s breath
• Poor coordination
• Slurred and incoherent speech
• Decreased alertness
• Slow and deliberate movements

However, these physical signs can be caused by various other factors such as tiredness, medical conditions or even stress. We would argue that alone, they are not enough to secure a conviction.

What happens when you are charged with impaired driving in BC?

In BC, if you fail any of the three tests described above, then one of two things will happen.

1. Either, you will be arrested and taken to a police station for further testing.

This might include a blood sample, a second breath test and/or a Drug Recognition Expert Evaluation (DRE). You are allowed to speak to a lawyer before performing these tests.

If the tests suggest that you were driving while impaired by alcohol and/or drugs, you will be charged under section 320 of the Criminal Code. You will receive a 90-day administrative driving prohibition (ADP) and your case will be listed for a court hearing. The court will then decide if you are guilty, and if so, what punishment to impose.

2. Or, you will be issued with an immediate roadside prohibition (IRP) at the roadside instead.

This means you are charged under the Motor Vehicle Act, rather than the Criminal Code. You must serve a driving ban and pay a fine, amongst other penalties.

You can get your licence back once you have served the length of your licence suspension.

If you register a ‘warn’ reading, you will be issued with an immediate roadside prohibition (IRP)

Further reading: What Happens When You Get a DUI in BC? 

Our impaired driving lawyers Vancouver

If you are facing allegations of impaired driving, contact us now at Mickelson & Whysall Law Corporation. We are experienced criminal lawyers practicing throughout British Columbia including Vancouver, Port Coquitlam, North Vancouver, Richmond and Surrey.

Brian Mickelson, Joel Whysall, Meghan Forhan, Cathryn Moore, Julie Audette and Aya Tubinshlak are skilled advocates. As our recent cases show, we know what defences are available when fighting impaired driving charges.

 

How to fight an impaired driving charge?

The best line of defence depends on the circumstances.

If you are charged under the Criminal Code, the prosecution must prove beyond reasonable doubt that your ability to operate a motor vehicle was impaired by alcohol or drugs. The prosecution’s case often rests on the testimony of police officers and civilian witnesses.

We can prepare your defence and argue your case in court. A proper defence emphasizes inconsistencies in witness testimony and points to the unreliability of evidence. Claims such as bad driving, the odour or alcohol, slurred speech and balance problems can all be explained away. They certainly do not provide an absolute indication that a driver was impaired.

As for the results of your breath test, a ‘fail’ result on a roadside breath test is not admissible in court to prove that a driver was impaired by alcohol. Instead, the prosecution must submit evidence from a BAC Datamaster C. These devices can malfunction. They must also be used in accordance with the Criminal Code.

If we can prove that the BAC Datamaster C was unreliable, or that the police made mistakes, then you must be found not guilty. These cases are often won on a technicality, so even if you blew over .08%, you may still avoid a criminal conviction.

In most cases, we can protect your driving privileges and keep you from being convicted of an impaired driving offence.

Typical BAC Datamaster Malfunctions

1. Calibration Error – The internal standard is flawed and the results are unreliable.
2. Detector Overflow – The instrument has recorded a result indicating mouth alcohol.
3. Invalid Sample– Mouth alcohol may have affected the sample and the results are unreliable.
4. Interference Detected – The instrument has detected something other than alcohol rendering the results unreliable.
5. Pump Error – The breath tube is obstructed and the results are unreliable.

Every electro-mechanical device can malfunction. A complex device, such as the BAC Datamaster, contains switches, valves, a pump and a micro-microprocessor, any of which may fail or malfunction without warning.

How to fight an immediate roadside prohibition?

You have the right to dispute an IRP in British Columbia. There will be an IRP hearing and an adjudicator will decide whether or not to uphold the driving ban.

We can prepare your case, putting forward evidence during the hearing to persuade the adjudicator to revoke your IRP. Grounds for revoking an IRP include:

• You had no intention to drive
• Your ASD test was affected by the consumption of cough syrup
• Your Charter Rights were breached
• You consumed alcohol or drugs after you stopped driving
• You were not in control of a vehicle
• The police failed to act in accordance with the law
• The ASD results were unreliable