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Impaired & Over 80

Charged with Impaired or Over 80? Book an appointment today!

Everyone's situation is unique, and the article below should be used for INFORMATIONAL PURPOSES ONLY. The article SHOULD NOT BE RELIED UPON as legal advice, nor is it intended to create a solicitor-client relationship. If you are charged with an offence, please retain and instruct counsel immediately. I do not guarantee the accuracy of any articles on this website and reserve the right to change its contents without notice. For more information please refer to the website's usage policy.

In Canada, the penalties for drinking and driving are severe.  Under the Criminal Code of Canada, there are two separate but associated offences that a driver can be charged with: impaired driving (section 253(1)(a) of the criminal code) and “over 80” (section 253(1)(b) of the criminal code). Parliament’s intention to enact two separate offences for what is arguably the same offence is because it wanted to punish not only those who were impaired while drinking, but to discourage those who drink and drive. Thus, while someone may have a blood alcohol concentration (shortened as “BAC”) under the legal limit of .08 milligrams of alcohol per 100 millilitres of blood, they can nevertheless have their ability to drive a motor vehicle impaired by alcohol. This is simply a reflection of the reality that different people have different tolerances and digestion rates of alcohol. While an accused person can be charged with both offences, it is more than likely on the conviction of such a person that one of the offences of either impaired or .80 be stayed in accordance with the Kienapple principle. The Kienapple principle is to make sure that people do not get punished twice for offences stemming from the same sequence of events.

While there are hard and fast instruments that can read when someone is over .08 of alcohol in their bloodstream, the question of impairment is more difficult to answer. How do you tell when someone is impaired? Police officers face that very same question every time they pull over a suspected drunk driver – if the police can’t show that the accused suffered from various indicia of impairment, their subsequent arrest and detention of the accused may be labeled as illegal. If that were to occur, the accused may be acquitted of his crimes even though there is no question about his actual guilt!

So when police officers pull someone over for suspected impaired or drunk driving, they are looking for certain signs that the driver is affected by alcohol. Some of these signs include the smell of alcohol in your car or in your breath (which is why they often stick their head in your car), the presence of opened containers of alcohol, glassy eyes, slurred speech, and lack of coordination. Once they have enough indicia of impairment, a police officer can request that you perform a road side breath test into an “approved screening device” or “ASD”. The ASD will then give a rough answer to whether your blood alcohol content is above .08 – pass, warn, or fail. If the device reads either “warn” or “fail” then there may be a variety of consequence as a result, including suspension of your licence immediately for 90 days and impoundment of your automobile.

Refusing to blow into the device is often not a great option: refusal to blow is a separate offence within the criminal code that carries penalties equal to that of impaired and over 80. It is a lot easier to convict a person for refusal to blow – so it is almost always within your best interest to co-operate and blow into the device.

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