An impaired driving charge can fall under a number of Criminal Code offences, depending on the circumstances. The way that these charges can be dealt with will also differ according to which offence you are charged with. Additionally, the offences and penalties also differ depending on which province you are from. This is because provinces are able to enact their own legislation allowing them to impose penalties for blood alcohol concentrations (“BAC”s) lower than the criminal limit of .08 under the Criminal Code. In this article, I limit my discussion to DUI charges in Alberta. If you are charged with a DUI in another Canadian jurisdiction, please consult a legal professional in your province.
The offences in the Criminal Code relating to driving under the influence fall under sections 253 to 255.
Under section 253(1), you can be charged with “Operation while impaired”. This has two branches. Under the section 253(1)(b) branch, you can only be charged with the offence if your BAC has been tested and determined to be 80 milligrams in 100 millilitres of blood (i.e. driving over .08). This is first tested using a roadside breathalyzer instrument. If you blow over .08, a police officer may charge you with this section 253(1)(b) offence. A second breath sample is done at the police station.
You can also be charged with operating a motor vehicle while impaired by alcohol or drugs. You may be charged with this offence if you register over .08 or even if you don’t, but the police officer has reasonable suspicion that you are impaired by alcohol or drugs. This may also be a combination of alcohol and drugs. This falls under the offence outlined in section 253(1)(a).
If you refuse to comply with either of the breathalyzer demands, on top of being charged with impaired driving, you can also be charged with a failure or refusal to comply under section 254(5).
Under each of these different offences, you can be charged under more serious provisions if your operation resulted in bodily harm or death to another person (sections 255(2)-255(3.2)).
Under Alberta’s Traffic Safety Act, where a person has been charged with a DUI offence under the Criminal Code, he or she will face an automatic driving disqualification (suspension) which takes effect immediately and remains in effect until the criminal charge is dealt with (section 88.1).
Additionally, where a driver is found guilty of an offence under section 253 or 254, the person is disqualified from operating a motor vehicle without an alcohol-sensing device for one year for a first conviction; 3 years for a second conviction within 10 years; and 5 years for subsequent convictions within 10 years. For more serious convictions under section 255, the suspension can be for up to 5 years.
If a convicted person wants to drive before their disqualification period has expired, he or she will be required to apply to the Registrar to set aside the operation of the disqualification. The Registrar may do so on certain terms and conditions and only if the driver installs an alcohol-sensing device in their motor vehicle. Alberta’s “Ignition Interlock Program” enables some applicants to drive again after 3 months of disqualification if a device is installed in their vehicle.
Those convicted of their first impaired offence under sections 253 and 254 will receive a minimum fine of $1,000. An individual with a second impaired driving offence could face a jail term of 30 days or more. And for each subsequent offence, an individual can face a jail term 120 days or more. The jail term can be for up to 18 months if punishable on summary conviction, or up to 5 years if prosecuted by indictment. Convictions under section 255 are more serious and can result in imprisonment up to 10 years or for life.
You can be charged with operation while impaired even if you are not actually driving. For example, you may be convicted if you were found sitting in the driver’s seat, with or without the keys in the ignition. However, the case law surrounding impaired driving is dense and complex. Please contact our criminal lawyers to assess your case and provide you the best defence possible.
By: Sarah Ure