Area of Law: Criminal Law
Answer Number: 774
Exceeding the legal blood-alcohol limitRegion: Ontario Answer Number: 774
What is the legal limit?
Driving while exceeding the legal blood-alcohol limit means being in control of a vehicle while having over 80 milligrams of alcohol for every 100 millilitres of blood in your body. This offence is commonly referred to as drunk driving and is a serious crime under the Canadian Criminal Code.
When can you be charged?
A person can be charged with exceeding the legal blood-alcohol limit even if they were not driving. The only requirement is that they had care and control of the vehicle. This could include sleeping in your vehicle, or just sitting in your vehicle while listening to the radio. You cannot defend yourself by arguing that you did not intend to drive.
Police questioning and physical tests
Under the law, the police have the right to stop your car and ask you if you have consumed alcohol or drugs before driving. Although you are not required to answer such questions, it is generally best to avoid becoming hostile with the police. You are required to provide the police with your driver’s licence, vehicle ownership, and insurance papers. The police also have the right to request that you perform several physical tests, such as walking in a straight line, picking up a coin, and following their finger with your eyes. Again, although you are not required to co-operate with the police, failing to comply may lead the police to suspect that you are impaired, and they may then demand that you provide a breath sample.
Roadside breath test and breathalyzer
If the police suspect that you have recently consumed alcohol, they may ask you to perform a roadside breath-screening test, which gives an approximate reading of the amount of alcohol in your body. It is a criminal offence to refuse such a test, and you do not have the right to consult with a lawyer first. If the breath-screening test indicates that you have consumed a certain level of alcohol, the police have the right to ask you to perform the more precise breathalyzer test at the police station. Before taking the breathalyzer test, you do have the right to consult with a lawyer.
If the breathalyzer test indicates that you have less than 80 milligrams of alcohol in your system, you cannot be charged with the offence of exceeding the legal limit. However, you could still be charged with the equally serious offence of impaired driving.
The police can immediately suspend your licence for three days for registering a blood alcohol concentration (BAC) of between 0.05 and 0.08 (50 – 80 milligrams of alcohol in every 100 millilitres of blood) for a first occurrence. This is known as the “warn range”. Your licence can be suspended for seven days for a second occurrence and 30 days for a third or subsequent occurrence.
If your breath sample exceeds the legal limit of 0.08 BAC, your driver’s licence will be automatically suspended for 90 days. If you are found guilty of exceeding the legal limit of alcohol, you will usually be subject to a minimum penalty of a $1,000 fine and a one year licence suspension if it is your first offence. For a second offence, you will usually be subject to a minimum penalty of 30 days in prison, and a minimum three year licence suspension. For a third or subsequent offence, you will usually be subject to a minimum penalty of 120 days in prison and a lengthy licence suspension. However, the court can impose penalties that are longer than these guidelines. The court may also order you to enrol in a drug or alcohol rehabilitation program. In addition, being convicted of exceeding the legal blood-alcohol level means you will have a criminal record.
If you were at fault for an accident while you were impaired, your automobile insurance policy will not cover damage to your vehicle and you may not be eligible to receive certain other benefits, such as income replacement benefits.
If you have been charged with any criminal offence, contact our preferred criminal law experts:
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