When a person is charged with impaired driving, he or she is often charged on two counts. The first is the operation of a vehicle at a time when the ability to drive was impaired by alcohol or a drug (or both). The second count involves driving a vehicle while the BAC is above the legal limit of 80 mg of alcohol per 100 ml of blood. However, a person can only be convicted on one of the two counts, since otherwise it would be a double conviction.
Charge 1: Driving a vehicle with impaired abilities
This offence only refers to the effects of alcohol consumption on an individual, as observed by police officers. Therefore, this count does not take into account the amount of alcohol consumed.
When the evidence shows that the person had an impaired ability to drive, regardless of the amount of alcohol consumed, he or she may be convicted of this offence. Therefore, a person may be found guilty even if they drove their vehicle while their alcohol level was below the legal limit. The evidence will then be based on the police officers’ observations. The judge will have to consider whether these observations demonstrate, beyond a reasonable doubt, an impairment in driving ability caused by alcohol or drugs (or both).
Symptoms generally observed by police officers include: an odour of alcohol from breath, a staggering gait, red and/or glassy eyes, a pasty mouth and a speech impediment.
2nd count: driving a vehicle with more than 80 mg of alcohol
This offence specifically targets driving a vehicle while the blood alcohol level is above the legal limit.
Proof of this offence is therefore provided by submitting the result of the breathalyzer test, the device used at the police station to accurately determine a person’s alcohol level. Note: Although samples are often taken several minutes or even more than an hour after the driver is stopped, the law provides that the result obtained by the breathalyzer test is presumed to be the person’s alcohol level at the time they were driving their vehicle if this level is taken no later than two hours after the vehicle is driven.
Driving and motor vehicle: the exact meaning of these terms
When it comes to the offence of impaired driving, the definition of “driving” differs from the standard definition. It is defined in its broadest sense.
For example, driving may be momentary, so that, for instance, a person sitting on the passenger side who grabs the steering wheel may be convicted of driving with impaired abilities.
The definition of “motor vehicle” includes any vehicle that can move without muscle power. As such, a moped, being a motorized vehicle, qualifies as a motor vehicle within the meaning of the law. It should be noted that even a vehicle that was not in operation at the time of the offence remains a “motor vehicle” within the meaning of the law.
How to proceed at the time of indictment
If you are charged with any of the offences related to impaired driving, the assistance of a specialist lawyer may be recommended. At Riendeau Lawyers, we can support you throughout the judicial process. Contact us now to find out how we can help you.
by Karl-Emmanuel Harrison
Reference : Criminal Code 2018 ; Impaired Driving in Canada : the Charter Cases , second Edition, by Justice Joseph