Impaired driving is one of the most commonly charged criminal offences in Canada. A conviction carries serious consequences — a permanent criminal record, licence suspension, fines, and potentially jail time. Understanding the charges against you and the defences available is essential from the moment you are stopped.
The Offences Under the Criminal Code
Impaired driving offences are set out in Part VIII.1 of the Criminal Code. The main charges you may face include:
Impaired Operation
Operating a motor vehicle while your ability to do so is impaired by alcohol or a drug, to any degree. No specific blood alcohol level is required.
Over 80 (80 mg%)
Having a blood alcohol concentration (BAC) of 80 mg of alcohol per 100 mL of blood or more within two hours of driving.
Failure or Refusal to Provide Sample
Refusing or failing to comply with a lawful demand for a breath, blood, or oral fluid sample. This carries the same penalty as impaired driving.
Drug-Impaired Driving
Driving while impaired by cannabis, prescription drugs, or other substances. Roadside oral fluid tests may be used and blood samples can be demanded.
Your Obligations During a Stop
When police lawfully stop your vehicle and have reasonable grounds to suspect alcohol or drug consumption, they may make a roadside demand. You are legally required to comply with:
- An Approved Screening Device (ASD) demand — a roadside breath test when police have a reasonable suspicion you have alcohol in your body;
- An Approved Instrument demand — a more precise breath test at the station when police have reasonable grounds to believe you exceed the legal limit;
- A blood sample demand when breath testing is not practicable; or
- A Standard Field Sobriety Test (SFST) or Drug Recognition Evaluation (DRE) when drug impairment is suspected.
Refusing any lawful demand is a separate criminal offence carrying the same penalties as impaired driving — and does not prevent the Crown from also proving impairment through other evidence.
Important:
Unlike your general right to remain silent, you do not generally have the right to consult a lawyer before providing a roadside ASD sample. The right to counsel arises after an ASD demand is satisfied and an Approved Instrument demand is made at the station.
Consequences of a Conviction
The penalties for impaired driving escalate with each subsequent offence:
| Offence | Minimum Fine | Minimum Licence Suspension |
|---|---|---|
| First offence | $1,000 | 1 year (provincial) |
| Second offence | 30 days imprisonment | 2 years (provincial) |
| Third or subsequent offence | 120 days imprisonment | 3 years (provincial) |
Beyond the Criminal Code penalties, Ontario's Highway Traffic Act imposes additional consequences including an immediate roadside licence suspension, vehicle impoundment, mandatory back-on-track education programs, and the Ignition Interlock program. A conviction also results in a permanent criminal record and dramatically increased insurance premiums.
Common Defences
Impaired driving charges are highly technical. An experienced criminal defence lawyer will scrutinize every step of the investigation for procedural and constitutional defences, including:
- Unlawful stop: If police did not have lawful authority to stop your vehicle, evidence gathered may be excluded under the Charter.
- Denial of right to counsel: If you were not promptly informed of your right to a lawyer, or were not given a reasonable opportunity to call one before providing a breath sample, the breathalyzer results may be excluded.
- Approved Instrument malfunction: Challenging the maintenance records, calibration, and operation of the breathalyzer device.
- Two-hour rule: The Crown must prove that your BAC exceeded 80 mg% at the time of driving. The 2018 Criminal Code amendments restricted, but did not eliminate, the “bolus drinking” defence — the accused may still challenge the BAC at time of driving if they can demonstrate their pre-drive consumption was consistent with a BAC under 80 at the time of the offence.
- Charter delay: Unreasonable delay between the stop and the breath demand can constitute a Charter breach.
Charged with impaired driving?
These cases are won and lost on technical and constitutional arguments. Brass Law Office has extensive experience defending DUI charges throughout Ottawa and Eastern Ontario. Call us right away — time-sensitive evidence must be preserved immediately.
This article is for general informational purposes only and does not constitute legal advice. Criminal law is fact-specific — contact a lawyer to discuss your situation.