Impaired Driving

 

IMPAIRED DRIVING – IMPAIRED BY ALCOHOL

 

Impaired Driving is a criminal offence contrary to s. s. 253(1) of the Criminal Code.  It is sometimes referred to as “Driving while intoxicated” (DWI) and “Driving under the influence” (DUI), which are both terms imported from the United States.  Impaired driving can be caused by alcohol, drugs, whether legal or illegal, or a combination of drugs and alcohol.  It is possible to be driving while impaired even when you have consumed drugs obtained legally.  The Crown needs to prove is that you were:

(a) operating or in care and control of a motor vehicle; and

(b) your ability to operate a motor vehicle was impaired to some degree by drug or alcohol or a combination of the two.

This article describes the large changes in impaired driving law that have come into effect in 2018.  For more information on how we can help you defend yourself against such a charge and what your chance of success is, please see this article. hyperlink

RECENT CHANGES IN THE LAW

On June 21, 2018, Bill-46 became law.  This bill contains sweeping changes to the impaired driving laws in Canada.  The changes to alcohol impairment take effect on Dec. 18, 2018.  These changes are very significant.  Police will be authorized to make screening device demands to any person lawfully stopped for some other purpose.  At present, the police are required to have “reasonable suspicion” that a person has alcohol in the body to administer a screening device demand.  Effectively, the police can screen a person for alcohol at any time at random.  There are significant other changes that limit the Crown’s disclosure obligations and prevent accused persons from raising certain types of defences.

The offence of impaired driving is spelled out in section 253(1)(a) of the Criminal Code. It reads.

 
Operation while impaired

253(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

o   (a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

o   (b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(a) includes impairment by a combination of alcohol and a drug.

(3) Subject to subsection (4), everyone commits an offence who has within two hours after ceasing to operate a motor vehicle or vessel or after ceasing to operate or to assist in the operation of an aircraft or of railway equipment or after ceasing to have the care or control of a motor vehicle, vessel, aircraft or railway equipment

o   (a) a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation;

o   (b) a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation and that is less than the concentration prescribed for the purposes of paragraph (a); or

o   (c) a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.

 As part of all these changes, the penalties if found guilty have been significantly increased.  The new penalties are:

Alcohol-impaired driving that does not cause bodily harm or death – mandatory minimum penalties:

·         First offence + blood alcohol content (BAC) of 80-119 mg: mandatory minimum $1,000 fine

·         First offence + BAC of 120-159 mg: mandatory minimum $1,500 fine

·         First offence + BAC of 160 mg or more: mandatory minimum $2,000 fine

·         First offence of refusal to be tested: mandatory minimum $2,000 fine

·         Second offence: mandatory minimum 30 days imprisonment

·         Third and subsequent offences: mandatory minimum 120 days imprisonment

Drug-impaired driving – Summary conviction offence:

·         2 nanograms (ng) but less than 5 ng of THC per millilitre (ml) of blood: maximum $1,000 fine

Drug-impaired driving – Hybrid offences – Mandatory minimum penalties:

·         5 ng or more of THC per ml of blood

o   First offence: mandatory minimum $1,000 fine

o   Second offence: mandatory minimum 30 days imprisonment

o   Third and subsequent offences: mandatory minimum 120 days imprisonment

·         Any detectable level of LSD, psilocybin, psilocin, ketamine, PCP, cocaine, methamphetamine, 6-mam

o   First offence: mandatory minimum $1,000 fine

o   Second offence: mandatory minimum 30 days imprisonment

o   Third and subsequent offences: mandatory minimum 120 days imprisonment

·         5 mg/L of GHB

o   First offence: mandatory minimum $1,000 fine

o   Second offence: mandatory minimum 30 days imprisonment

o   Third and subsequent offences: mandatory minimum 120 days imprisonment

·         50 milligrams (mg) of alcohol per 100 ml blood + 2.5 ng or more of THC per ml of blood

o   First offence: mandatory minimum $1,000 fine

o   Second offence: mandatory minimum 30 days imprisonment

o   Third and subsequent offences: mandatory minimum 120 days imprisonment

Impaired driving causing no bodily harm or death – Maximum penalties:

·         Summary conviction: 2 years less a day imprisonment

·         Indictment: 10 years imprisonment

Impaired driving causing bodily harm – Maximum penalties:

·         Summary conviction (for less severe injuries): 2 years less a day imprisonment

·         Indictment: 14 years imprisonment

Impaired driving causing death – Maximum penalty:

·         Life imprisonment

Wait time for provincial interlock program:

·         First offence: no wait

·         Second offence: 3 months

·         Third and subsequent offences: 6 months

 

IMPAIRED DRIVING – IMPAIRED BY DRUG

As part of the legalization of marijuana, the federal government has also made very sizable changes to impaired driving law.  Prior to these changes, impairment by drug was fairly subjective and difficult for the Crown to prove.  Section 253(3) of the Criminal Code creates THREE NEW CRIMINAL OFFENCES.  The federal government has established by regulation various limits for blood alcohol concentrations or various drugs.  If you are over these limits, you are committing a criminal offence.  These limits are:

·         for the summary conviction offence for 2 nanograms (ng) but less than 5 ng of THC per millilitre (ml) of blood

·         for the hybrid offence for 5 ng or more of THC per ml of blood

·         for the hybrid offence for a combination of 50 milligrams (mg) of alcohol per 100 ml blood + 2.5 ng or more of THC per 1 ml of blood

In addition, if you have any of the following levels of the following drugs in your body, that is a new criminal offence. 

  Drug  Concentration
1 Tetrahydrocannabinol (THC) 5 ng/mL of blood
2 Lysergic acid diethylamide (LSD) Any detectable level
3 Psilocybin Any detectable level
4 Psilocin Any detectable level
5 Phencyclidine (PCP) Any detectable level
6 6-Monoacetylmorphine Any detectable level
7 Ketamine Any detectable level
8 Cocaine Any detectable level
9 Gamma hydroxybutyrate (GHB) 5 mg/L of blood
10 Methamphetamine Any detectable level

 

There are also detailed penalties for impaired by drug offences.  They are:

Penalties for drug-impaired driving

New summary conviction offence:

·         2 nanograms (ng) but less than 5 ng of THC per millilitre (ml) of blood: maximum $1,000 fine

New hybrid offences:

·         5 ng or more of THC per ml of blood:

o   First offence: mandatory minimum $1,000 fine

o   Second offence: mandatory minimum 30 days imprisonment

o   Third and subsequent offences: mandatory minimum 120 days imprisonment

·         Any detectable level of LSD, psilocybin, psilocin, ketamine, PCP, cocaine, methamphetamine, and/or 6-mam:

o   First offence: mandatory minimum $1,000 fine

o   Second offence: mandatory minimum 30 days imprisonment

o   Third and subsequent offences: mandatory minimum 120 days imprisonment

·         5mg/L of GHB:

o   First offence: mandatory minimum $1,000 fine

o   Second offence: mandatory minimum 30 days imprisonment

o   Third and subsequent offences: mandatory minimum 120 days imprisonment

·         50 milligrams (mg) of alcohol per 100 ml blood + 2.5 ng or more of THC per  ml of blood:

o   First offence: mandatory minimum $1,000 fine

o   Second offence: mandatory minimum 30 days imprisonment

o   Third and subsequent offences: mandatory minimum 120 days imprisonment

·         Drug-impaired driving that does not cause bodily harm or death – Maximum penalties:

o   Summary conviction: 18 months imprisonment

o   Indictment: 5 years imprisonment

·         Drug-impaired driving causing bodily harm – Maximum penalty:

o   Indictment: 10 years imprisonment

·         Drug-impaired driving causing death – Maximum penalty:

o   Life imprisonment