Impaired Driving: The Complete Guide

Complete Guide · Criminal Law

What happens after the arrest

The offences under the Criminal Code

What is commonly called « drunk driving » actually covers several distinct Criminal Code offences, which may be charged separately or together.

• Impaired driving (s. 320.14(1)(a) Cr.C.): operating a vehicle while one’s ability is impaired, to any degree, by alcohol, a drug or a combination of both. This offence does not depend on a blood alcohol level: it rests on the officer’s observations (erratic driving, smell of alcohol, slurred speech, foam on the lips, unsteady gait), which must meet both a subjective and an objective standard.
• Blood alcohol concentration of 80 mg or more (s. 320.14(1)(b) Cr.C.): having, within two hours of driving, a blood alcohol concentration of 80 mg or more of alcohol per 100 ml of blood. This is the « .08 » offence, proven by the results of the breathalyzer test administered at the station by a qualified breath technician.
• Refusal or failure to comply (s. 320.15 Cr.C.): refusing to provide a breath or blood sample, or to submit to the coordination tests demanded by the officer. Refusal is punished as severely as a high blood alcohol level.
• Care or control: you do not need to be driving to be charged. The person occupying the driver’s seat is presumed to have care or control of the vehicle (s. 320.35 Cr.C.), unless they show that they were not there to set it in motion. We explain this presumption and the notion of a realistic risk of danger in our article on care or control while impaired.

The police procedure

A police officer who has an approved screening device in their possession may demand a breath sample from any driver if they have sufficient grounds to suspect the presence of alcohol in that driver’s body (s. 320.27(2) Cr.C.), provided the stop itself was lawful.

The lawfulness of the stop itself can indeed be examined. Section 636 of the Highway Safety Code, which allowed random stops, was declared of no force or effect by the Quebec Court of Appeal in Luamba when used for the oblique purpose of discrimination. Our article on police stops and section 636 of the HSC takes stock of this question.

If the device registers a positive result (« Fail »), the officer then has reasonable grounds to believe that an offence has been committed and proceeds with the driver’s arrest. Those reasonable grounds may also arise from the officer’s observations alone.

Before the tests at the station, the arrested driver must be informed of their right to retain and instruct counsel and be given a reasonable opportunity to exercise it (s. 10(b) of the Canadian Charter of Rights and Freedoms). A breach of this right is a possible defence.

At the police station, the driver provides two breath samples into an approved instrument, known as the breathalyzer, at least fifteen minutes apart (s. 320.28 Cr.C.). The results of these samples are presumed accurate and are deemed to correspond to the blood alcohol concentration at the time of driving (s. 320.31 Cr.C.).

The SAAQ’s immediate administrative measures

Independently of the criminal case, the Highway Safety Code provides for measures that apply on the spot, before any court decision.

• 90-day licence suspension (s. 202.4 HSC): upon arrest for impaired driving or refusal to provide a sample, the licence is suspended for 90 days. This suspension is automatic.
• Vehicle seizure (s. 209.2.1 HSC): the vehicle is seized for 30 days when the blood alcohol concentration reaches 160 mg or when the driver refused to comply. The seizure lasts 90 days in case of a repeat offence within ten years. An owner who was not the driver of a vehicle towed in this way may apply to have the seizure lifted.
• Zero tolerance (s. 202.2 HSC): holders of a learner’s or probationary licence and drivers under 22 may have no trace of alcohol in their blood; the presence of alcohol brings an immediate 90-day suspension even below the criminal .08 threshold.

The ignition interlock program and the assessments required by the SAAQ are detailed in our article Impaired Driving and the SAAQ.

The court process

The appearance notice, handed over after an arrest, gives the date of the first appearance, which is usually scheduled a few months later. At that stage, your lawyer will enter a plea of not guilty and request full disclosure of the evidence, that is, the police report, the officers’ notes, the breathalyzer results, the qualified technician’s certificate, and so on.

One or more pro forma dates follow, during which the lawyer reports to the court on their analysis of the evidence and their requests for further disclosure. The lawyer is responsible for identifying the weaknesses in the file and negotiating with the prosecutor. Three outcomes are then possible: a negotiated guilty plea, the withdrawal of the charges
(possible only when the evidence contains a manifest error), or a trial, during which Charter motions may be brought to have the breathalyzer results or the police observations excluded.

The entire process must respect the 18-month or 30-month ceiling set by the Supreme Court in R. v. Jordan, 2016 SCC 27. We explain how this delay is calculated, and its exceptions, in our article on reasonable delay and the Jordan decision.

Pleading guilty at the first appearance, without having seen the evidence, amounts to giving up your rights. It is always better to analyze the file rigorously.

The sentences under the Criminal Code

The Criminal Code imposes mandatory minimum sentences for impaired driving (s. 320.19 Cr.C.). A driving prohibition, which is not necessarily absolute, is also added to the sentence. This means that the driver must obtain a licence from the SAAQ allowing them to drive a vehicle equipped with an alcohol ignition interlock device.

Because these offences carry a minimum sentence, a discharge, which would avoid a criminal record, is not available (s. 730(1) Cr.C.). Our article on discharges explains in which cases this measure can be obtained for other offences.

These minimums are only floors. An accident, injuries, a very high blood alcohol level, the presence of children in the vehicle or excessive speed are all aggravating factors (s. 320.22 Cr.C.) that justify a harsher sentence. Please refer to our article Consequences of an Impaired Driving Arrest for more details.

The criminal record and its consequences

A conviction for impaired driving is entered on the offender’s criminal record, which can affect many areas of their life: background checks when applying for a job, difficulty gaining admission to certain professional orders, higher car insurance premiums or refusal of coverage, and obstacles to travel, particularly to the United States, whose border officers may deny entry to a person with a criminal conviction. For a permanent resident, a conviction can also jeopardize an application for Canadian citizenship.

A record suspension (a « pardon » or « waiver ») may be applied for five years after the sentence has been fully served for an offence prosecuted by summary conviction, and ten years for an indictable offence (s. 4 of the Criminal Records Act). We address all of these repercussions in our article on the impacts of a criminal record.

Getting back behind the wheel: ignition interlock and assessments

When the driving prohibition imposed by the court is not absolute, the SAAQ allows a person to drive a vehicle equipped with an alcohol ignition interlock device under the provincial program (s. 320.24(10) Cr.C.). In Québec, this program is administered by the SAAQ (ss. 76.1.1 et seq. HSC). The driver applies for a restricted licence subject to the interlock condition and bears the cost of installing and renting the device.

Before a regular licence is reinstated, the SAAQ often requires the driver to undergo an assessment of their relationship with alcohol: the summary assessment, which is shorter, is required first. If it is failed, the comprehensive assessment becomes necessary. It involves monitoring every start of the vehicle by the driver.

In case of a repeat offence, the interlock condition may be imposed for an extended period, or even for life, with the possibility of applying to have it lifted after ten years (s. 76.1.6 HSC). These steps are explained in the article Impaired Driving and the SAAQ.

The most common defences

Every impaired driving case rests on a chain of steps that the prosecutor must prove beyond a reasonable doubt. The weaknesses most often examined by a criminal lawyer are the following.

• The lawfulness of the stop: an arbitrary detention, for example a stop made for a discriminatory reason, can lead to the exclusion of the evidence under section 24(2) of the Charter.
• The right to counsel: failing to inform the driver of their right to counsel within a reasonable time (s. 10(b) of the Charter) can also lead to the exclusion of the evidence under section 24(2) of the Charter.
• Timing and operation of the breathalyzer: samples taken outside the prescribed time, an insufficient interval between the two tests, deficient maintenance or calibration of the instrument, or the technician’s lack of qualification can help rebut the presumption that the breathalyzer is accurate.
• Care or control: the absence of a realistic risk that the vehicle would be set in motion leads to an acquittal. This is the case, for example, when the person was sleeping in a parked vehicle without their keys.
• Reasonable excuse for refusing to comply with a police officer’s demand also leads to an acquittal. This is the case, for example, of a driver with a genuine medical inability to provide a breath sample.

These grounds, and other defences applicable in criminal and penal law, are presented in our article on defences in criminal and penal law.

Consult Me Alexandre Lacroix

Have you been arrested for impaired driving in Montreal, Laval, Longueuil or elsewhere in Québec? Me Alexandre Lacroix, a Montreal criminal lawyer, reviews your case during a free first consultation: the lawfulness of the stop, respect for your right to counsel, the reliability of the samples, the steps with the SAAQ and the options for resolving the case. Bring your undertaking to appear and any document handed to you by the police.

The content of this page is provided for general information purposes only and does not constitute legal advice. Every situation is unique — consult a legal professional for advice tailored to your case.