Impaired Driving
Get clear advice before deciding what to do about impaired driving charges.
An impaired-driving charge can affect your driver’s licence, employment, insurance, ability to travel and criminal record. Some consequences begin immediately—even though you have not been convicted.
Tyler MacDonald defends clients charged with alcohol-impaired driving, drug-impaired driving, having a blood-alcohol concentration at or above the legal limit, and refusing or failing to comply with a testing demand.
Tyler has obtained acquittals in impaired-driving cases involving alcohol, cannabis, cocaine, Drug Recognition Expert evidence and toxicological testing. Every case is different, however, and past results do not guarantee a similar outcome.
An impaired driving charge is not a conviction
Impaired-driving cases can appear straightforward. The police may have breath readings, observations about a person’s driving or behaviour, results from physical coordination tests, or an opinion from a Drug Recognition Expert.
That evidence must still be examined carefully.
The Crown must prove every essential element of the charge beyond a reasonable doubt. Depending on the case, important issues may include:
- Whether the Crown can prove who operated the vehicle
- When the alleged operation occurred
- Whether the police had lawful grounds for the arrest or testing demand
- Whether the demand was made and carried out properly
- Whether the accused was given a reasonable opportunity to consult counsel
- Whether breath, blood or toxicological evidence is reliable and admissible
- Whether police observations actually establish impairment
- Whether a medical condition, injury, fatigue or anxiety provides an alternative explanation
- Whether a person accused of refusing a demand had a reasonable excuse
There is no standard defence that applies to every impaired-driving charge. The right strategy begins with the disclosure, the client’s account and a disciplined review of the investigation.
What should you do after being charged?
If you have just been released by police:
- Do not drive while your licence is suspended. Driving during a suspension or prohibition can result in another charge and further consequences.
- Read your release documents carefully. Record every court, fingerprinting and reporting date.
- Keep everything the police gave you. This may include appearance notices, undertakings, certificates, towing documents and licence-suspension paperwork.
- Preserve relevant evidence. Dashcam recordings, photographs, receipts, messages, location records and nearby surveillance footage can be lost or overwritten.
- Do not post about the incident online. Social-media content may become evidence.
- Speak with a criminal defence lawyer before entering a plea. An early consultation can help identify evidence that should be preserved and issues that require further investigation.
Bring or send your paperwork when arranging the consultation. If you know your next court date, include it in your message.
Common impaired-driving charges
Impaired operation
A person may be charged if the police allege that their ability to operate a vehicle or other conveyance was impaired to any degree by alcohol, a drug, or a combination of alcohol and a drug.
A particular breath or blood reading is not required for an impaired-operation prosecution. The Crown may rely on observations of driving, speech, balance, coordination, comprehension or behaviour. Each observation must be considered in its proper context.
Blood-alcohol concentration at or above 80
Often called “over 80,” this offence concerns having a blood-alcohol concentration equal to or greater than 80 milligrams of alcohol in 100 millilitres of blood within two hours after ceasing to operate a conveyance.
A person can face this charge even if the police do not describe them as visibly intoxicated. Conversely, a reported breath result does not eliminate the need to examine the demand, testing process, documentation and admissibility of the evidence.
Drug-impaired driving
Impairment can be alleged to result from cannabis, prescription medication, illegal drugs, or a combination of drugs and alcohol.
These investigations may include roadside coordination tests, an oral-fluid screening device, a Drug Recognition Evaluation and the collection of blood, urine or other bodily samples. The defence may require careful comparison of the officer’s opinion with the toxicological evidence, medical history and circumstances surrounding the testing.
The presence of a drug and impairment by that drug are not necessarily the same issue. The precise charge and prescribed concentration provisions must be reviewed.
Refusing or failing to comply with a demand
It is a separate criminal offence to knowingly refuse or fail, without a reasonable excuse, to comply with a lawful demand for breath, blood, oral fluid, urine, physical coordination testing or a drug evaluation.
For a first offence, refusal carries a higher mandatory minimum fine than a standard first impaired-driving conviction. But a refusal charge is not automatically proved by an officer saying that a person did not provide a sample.
The defence may examine:
- Whether a legally valid demand was made
- Whether the person understood the demand
- Whether the person actually refused or instead attempted to comply
- Whether sufficient opportunity to comply was provided
- Whether a medical or physical condition affected the person’s ability to provide a sample
- Whether there was a reasonable excuse
- Whether the person’s right to counsel was respected
Impaired operation causing bodily harm or death
Allegations that impaired operation caused injury or death carry substantially greater jeopardy. These cases can involve accident reconstruction, toxicology, medical evidence and contested questions of causation. They require immediate and thorough preparation.
Can police demand a roadside breath sample without suspecting alcohol consumption?
During a lawful traffic stop, an officer who has an approved screening device may make a mandatory alcohol-screening demand without first forming a suspicion that the driver has alcohol in their body.
Other testing demands have their own legal requirements. The validity of a demand depends on the type of test, what the officer knew, when the demand was made and how the investigation proceeded.
Failing or refusing to comply with a lawful demand can itself lead to a criminal charge. If you have already been charged, obtain legal advice about what occurred rather than assuming the police procedure was either valid or invalid.
Can you be charged while sitting in a parked vehicle?
Yes. If a person occupies the seat ordinarily used by the driver, the Criminal Code creates a presumption of operation unless the person establishes that they did not occupy that position for the purpose of setting the vehicle in motion.
The location of the keys, condition of the vehicle, reason for entering it and surrounding circumstances may all be important. Deciding to “sleep it off” in the driver’s seat does not necessarily prevent an impaired-driving charge.
Immediate and longer-term consequences
In Ontario, a driver charged after registering a BAC at or above 0.08, refusing a demand, or failing a Drug Recognition Expert evaluation can face an immediate 90-day administrative licence suspension, vehicle impoundment and monetary penalty. These roadside consequences are separate from the criminal prosecution and do not mean that the driver has been found guilty.
A criminal conviction can (or will) result in:
- A criminal record
- A mandatory fine or imprisonment
- A court-ordered driving prohibition
- A provincial licence suspension
- Mandatory education or treatment
- An ignition-interlock requirement
- Increased insurance costs or loss of coverage
- Employment consequences, particularly where driving is required
- Potential immigration or travel consequences
For a first standard offence, the Criminal Code ordinarily requires a minimum $1,000 fine and a driving prohibition of at least one year. An automatic one-year licence suspension will also be triggered. Higher minimum fines apply to elevated blood-alcohol readings and refusal offences. Repeat offences carry mandatory minimum periods of imprisonment.
The precise consequences depend on the charge, the prosecution’s election, the alleged BAC, any accident or injury, and the person’s prior record. Provincial driving rules can also change independently of the Criminal Code.
How impaired-driving cases are defended
Effective representation requires more than looking at the numbers on a breath certificate. Tyler’s review may include:
Proof of operation
The Crown must prove that the accused operated the relevant conveyance. This can become a central issue after a collision, where police did not see who was driving, or where the accused was found in or near a stationary vehicle.
Police observations
Descriptions such as “slurred speech,” “unsteady balance” or “red eyes” should not simply be accepted at face value. Video evidence, medical conditions, injuries, fatigue, weather, stress and inconsistencies between officers may affect the reliability or significance of those observations.
The legality of testing demands
Different demands require different statutory grounds and procedures. The timing, wording and basis for a demand may affect whether the resulting evidence is admissible.
Breath-testing evidence
Disclosure may include breath-room video, approved-instrument printouts, qualified-technician notes, certificates and maintenance or calibration records. The issues depend on the instrument, the manner in which the samples were obtained and the evidence the Crown seeks to introduce.
Charter compliance
An impaired-driving investigation may engage the right to be free from unreasonable search and seizure, the right not to be arbitrarily detained, and the right to retain and instruct counsel without delay. A Charter breach does not automatically end a prosecution, but it may support an application to exclude evidence or another remedy.
Drug-recognition and toxicological evidence
Drug-impaired cases may require scrutiny of the Drug Recognition Expert’s tests, assumptions and conclusions. Toxicological evidence must be interpreted carefully; the detection of a substance does not always establish that it caused impairment at the relevant time.
Medical and other expert evidence
A physical limitation, injury, illness or medication may explain an observation that police interpreted as impairment or a failure to comply. Where appropriate, medical or toxicological evidence can provide necessary context.
Impaired-driving cases Tyler has defended successfully
Drug-impaired driving: Crown conceded the case could not be proved
A Drug Recognition Expert concluded that Tyler’s client was impaired by two categories of drugs. Tyler challenged the reliability of that opinion and demonstrated that the toxicological results were inconsistent with it. Following closing submissions, the prosecutor conceded that the case could not be proved and the client was found not guilty.
Read: Client Accused of Driving While Impaired by Drugs Vindicated at Trial
Alcohol-impaired driving: charges dismissed at trial
Tyler’s client was charged following an apparent accident. After the Crown closed its case, Tyler argued that it had presented no evidence capable of proving that his client had operated either vehicle. The charges were dismissed.
Read: Client Acquitted in Impaired Driving Case
Alcohol, cannabis and cocaine allegations: acquittal
The Crown relied on an accident, police observations, a Drug Recognition Evaluation and bodily-fluid testing. Cross-examination exposed errors in the evaluation and innocent explanations for the observations. Medical evidence also explained limitations that affected balance testing. The client was acquitted.
Past results are not necessarily indicative of future results. Outcomes depend on the facts and evidence in each individual case.
What to expect when you contact Tyler
During the initial consultation, Tyler will ask about:
- The charge or charges
- What happened the police or witnesses allege happened
- Any breath, blood, oral-fluid or coordination testing
- Statements allegedly made to police
- Medical conditions or medications that may be relevant
- Your release documents, suspension notice and first court date
- Your work, licensing, travel or immigration concerns
He will explain the next procedural steps, what disclosure is likely to be important and the available options for dealing with the case. No responsible lawyer can guarantee an outcome before reviewing the evidence, but you should leave the consultation with a clearer understanding of where the case stands and what happens next.
Speak with Tyler MacDonald
An impaired-driving charge should be examined before you decide whether to plead guilty, negotiate a resolution, or proceed to trial.
Tyler represents clients in Toronto and throughout Ontario.