Impaired driving, often referred to as "drunk driving" or "driving under the influence" (D.U.I.), is a criminal offence. Because it happens so often and because of the serious consequences on conviction, it is one of the most heavily litigated areas of Canadian law.
As with all criminal offences, there are general principles of law that you should know.
1. You are presumed innocent until you are proven guilty.
2. The State (in Canada referred to as the Crown) must prove that you are guilty. You do not have to prove that you are innocent.
3. The standard of proof in a criminal case is"proof beyond a reasonable doubt". This standard is very high. Before a conviction is entered, the judge must be "sure" that the evidence points towards guilt.
4. A complex set of rules and procedures is in place to protect the rights of each and every person who is charged with a criminal offence. These rules cover everything from the presumption of innocence, to freedom from unreasonable search and seizure, to the guarantee of a fair trial.
While we have attempted to answer some of the questions that you may have if you are facing an impaired driving or related charge, it is impossible to answer everything here. Volumes of information exist on the intricacies of this complex topic. There is no substitute for having an experienced impaired driving lawyer to help you with your case.
The 3 Major Charges
There are a number of separate offences in the Criminal Code that relate to impaired driving and the breath testing process. The 3 major offences are:
1. "Impaired driving" - This refers to the operation of a motor vehicle while your ability to operate the vehicle is impaired by alcohol or a drug.
2. "Over .08" or "Over 80" - This refers to having more than the legal amount of alcohol in your blood as measured by a breath or blood test. The legal limit in Canada is 80 milligrams of alcohol in 100 milliliters of blood.
3. "Refuse sample" - This refers to a refusal to comply with a lawful demand by a peace officer to provide a breath or blood sample.
There are separate charges for impaired driving causing bodily harm and impaired driving causing death. These charges carry greater maximum penalties, and are typically dealt with more severely by the courts.
But I wasn't driving.
You don't have to be driving in order to be charged with Impaired Driving or Over .08. It is enough if you have "care or control" of the vehicle. For example, you can be charged with impaired driving if you are sitting in the driver's seat of a stationary vehicle. There are defences available to you in circumstances where the vehicle is not being driven, but the mere fact that the vehicle was not in motion when the police arrived does not constitute a defence by itself.
Introduction