Impaired Driving

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Over 80, Fail to Provide Breath Sample, DUI and all other Drinking and Driving Related Offences

While impaired driving charges may seem fairly straightforward, in reality, this is rarely the case. There are a number of factors that must be proven before you can be convicted and there are many defences available to you. If you have been charged with Impaired Driving, Driving “Over 80,” Refusal/Failure to Provide a Breath or Blood Sample or any other offence related to driving while under the influence of alcohol or drugs, David Anber can help defend your case.

Impaired Driving and “Over 80”

Impaired Driving (s. 253(1)(a) of the Criminal Code) does not require the results of a breathalyzer or drug test. You can be charged based upon evidence such as the smell of alcohol on your breath, dilated pupils, slurred speech or the presence of alcohol or drugs in your car.

“Over 80” (s. 253(1)(b) of the Criminal Code)does not require that you display any signs of impairment. It merely requires that a breathalyzer or blood test indicated you had over 80 milligrams of alcohol per 100 millilitres of blood in your system while you were driving.

Possible ways of defending against Impaired Driving and “Over 80” charges include:

  • callinginto questionthe way police officers assessed evidence that you were impaired;
  • providing evidence to contradict allegations that you were impaired;
  • challenging the accuracy of the breathalyzer;
  • providing evidence that although you were seated in the driver’s seat, you had no intention of driving the vehicle; or
  • providing evidence that you became “involuntary impaired” through receiving a spiked drink or taking medication that affected you in an unforeseen way.

Refusal/Failure to Provide a Breath or Blood Sample

A conviction for Refusal/Failure to Provide a Breath or Blood Sample(s. 254(5) of the Criminal Code) requiresthat three factors be proven beyond a reasonable doubt:

  • the police officer made a valid demandfor a breath or blood sample;
  • you failed/refused to provide the breath or blood sample; and
  • you intended to fail/refuse to produce a breath sample.

Furthermore, if you provide a “reasonable excuse” for not providing the samplethat the judge accepts, this will act as a full defence to the charges.

Charges of Refusal/Failure to Provide a Breath or Blood Sample can be defended against on the basis that:

  • the officer did not have sufficient grounds to believe you were impaired prior to making the demand;
  • there was an unreasonable delay between the officer pulling you over and making the demand;
  • there was an unreasonable delay between the demand being made and the roadside screening device/breathalyzer being made available;
  • you did not understand what you were being asked to do;
  • you genuinely tried to provide a breath sample, but the machine did not register it; and/or
  • you have a medical condition that would make blowing into a roadside screening device/breathalyzer difficult or dangerous.

Minimum Penalties

Impaired Driving and “Over 80” carry mandatory minimum penalties of:

  • a fine of $1000 for a first offence,
  • 30 days of imprisonment for a second offence and
  • 120 days of imprisonment for a third offence.


Furthermore, upon conviction, your driver’s license will be suspended for one year, and in Ontario, this suspension will not be lifted until you meet certain requirements, including paying fines, completing an alcohol treatment program and having an interlock device installed in your vehicle.

If you are convicted of Refusal/Failure to Provide a Breath or Blood Sample, the penalties are the same as if you took the test and failed. Thus, the mandatory minimum penalties also apply to these offences.

Additional Penalties

Impaired Driving and “Over 80” are hybrid offences, meaning that the Crown attorney will decide whether to prosecute your chargeas a summary (less serious) or an indictable (more serious) offence. If you are convicted of an indictable offence, in addition to the mandatory minimum punishment, you could receive a jail term of up to five years. If you are convicted of a summary offence, you could receive a jail term of up to 18 months,in addition to the mandatory minimum punishment.

If you are convicted of anImpaired Driving or “Over 80” offence that has resulted in bodily harm, you could receive up to 10 years imprisonment. If the offence resulted in death, you could be facing life imprisonment.

If you are convicted of Refusal/Failure to Provide a Breath or Blood Sample, the penalties are the same as for an “Over 80” conviction. Likewise, if, prior to being asked to provide a sample, you caused an accident that resulted in bodily harm or death, you could face a maximum of 10 years or life imprisonment respectively.

If you are located in Ottawa, Toronto, Hull, Gatineau, Brockville, Cornwall, Pembroke or anywhere in Ontario or Quebec, Dynamic Legal Solutions can help you find a lawyer to fight your case.

Click here to ask a question which will be responded to by a lawyer who practices in Ontario and Quebec in this area of the law.

Dynamic Legal Solutions recommends the services of David Anber, a criminal lawyer in Ottawa who practices in Brockville, Cornwall, Montreal, Toronto and across Quebec and Ontario.
Tollfree: 1-888-989-3946
E-mail: ask@davidanber.com

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