Area of Law: Criminal Law
Answer # 774
Exceeding the legal blood-alcohol (over 80), and/or blood-drug limit (THC 2-5ng)Region: Ontario Answer # 774
What is the legal limit?
Impaired driving under section 320.14 of the Canadian Criminal Code, makes it an offence for anyone, within two hours after ceasing to operate a motor vehicle, to have a:
- Alcohol: blood-alcohol concentration that is equal to or over 80 mg of alcohol in 100 ml of blood, or
- Drug: blood-drug concentration is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation, or
- Blood-alcohol concentration and a blood-drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for a drug that is prescribed by regulation for instances where alcohol and that drug are combined.
The prohibited levels for cannabis are as follows:
- Cannabis (THC): Between 2 nanograms (ng) and 5 ng of THC per ml of blood (less serious offence); and 5 ng of THC or more per ml of blood (more serious offence)
- Combination of alcohol and cannabis: 50 mg or more of alcohol per 100 ml blood and 2.5 ng or more of THC per ml of blood.
Refer to the Blood Drug Concentration Regulations to view the listed drug categories and limits.
For specific information on cannabis-impaired driving, refer to our Cannabis Law and Driving section.
Depending on the findings of the police, the test results, and the specific circumstances, a driver may be charged with one or more additional criminal driving offences, such as:
- impaired driving, section 320.14 (1) (a)
- driving while exceeding the legal blood-drug limit, section 320.14 (1) (c)
- failure or refusal to comply with demand, section 320.15
- dangerous driving, section 320.13
- criminal negligence, section 219 (1)
- drive while license suspended, section 320.18
- failure to stop after accident, section 320.16, etc.
If you have been charged with a criminal offence, it is important to hire an experienced criminal defence lawyer as soon as possible.
Exceptions to the two-hour time-frame
Exception if over blood-alcohol limit
Under section 320.14 (5), a driver will not have committed the offence of operating a motor vehicle over the blood alcohol limit if they meet all three of the following criteria:
- the driver consumed the alcohol after driving,
- after driving, the driver had no reasonable expectation that he or she would be required to provide a breath or blood sample, and
- the driver’s alcohol consumption is consistent with their blood alcohol concentration being, at the time when they were operating the vehicle, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.
Exception if over blood-drug limit
Under section 320.14 (6), a driver will not have committed the offence of operating a motor vehicle over the blood drug limit, if they meet the following two criteria:
- the driver consumed the drug after driving, and
- after driving, the driver had no reasonable expectation that he or she would be required to provide a sample of their bodily fluid.
How the police assess whether you are impaired
Under the law, the police have the right to stop vehicles and ask drivers if they have consumed alcohol or drugs. 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, car ownership, and insurance papers.
You do not have the right to consult a lawyer before performing a roadside test. The police will make a judgment about your ability to drive safely based on a number of observations, tests, and samples, including:
- your appearance,
- your answers to questions,
- your physical movement, and
- whether you or your car smell of alcohol;
- a breath-screening test for alcohol,
- the Standardized Field Sobriety Test (SFST) – which can include examining the eyes of drivers, as well as putting drivers through a series of physical tests, and
- an oral fluid (saliva) sample to test for drug impairment.
Mandatory roadside breath test: Under recent changes to the Criminal Code, police officers no longer need to suspect a person of impaired driving in order to demand a breath test. They can now conduct random mandatory roadside breath tests to screen for alcohol impairment. This means that drivers who are stopped for any other reason, such as a traffic violation, or a check stop, may be required to provide a breath test.
If you are arrested and taken to the police station or medical facility for further testing, you do have the right to have a lawyer present. Further testing may include:
- evidence from roadside tests
- evidentiary breath-screening test
- bodily fluid sample testing
- Drug Recognition Evaluation (DRE)
Refusing to provide a sample or perform a test can result in being charged with the Criminal Code offence of failure or refusal to comply (s. 320.15).
Testing over the limit
If you test over the blood alcohol and/or blood–drug limits, you will likely be charged under section 320.14(1) (b), (c), and/or (d) of the Criminal Code.
If you test below the legal limits, but the police officer has nonetheless determined that you are impaired, through other tests conducted, you could still be charged with other criminal driving offences, such as impaired driving.
Penalties if convicted ‘over the legal limit’
If convicted of operating a motor vehicle while being over the blood alcohol limit, drug alcohol limit, or a combination of both, there are penalties under the Ontario Highway Traffic Act and the Canadian Criminal Code.
1. Penalties under the Ontario Highway Traffic Act
Drug-impaired driving: Fully licensed drivers caught driving impaired by any drug including cannabis, prescription drugs or over-the-counter medications are subject to the same penalties as alcohol impaired drivers. Previously, drug impaired drivers faced criminal charges, but did not face licence penalties and suspensions under provincial legislation.
Immediate penalties for impaired driving offences include:
- an immediate 90-day roadside licence suspension,
- a $550 administrative penalty,
- a $275 licence reinstatement fee,
- your vehicle will be impounded for seven days,
- mandatory education or treatment program (for second or subsequent offences within 10 years), and
- an ignition interlock condition will be placed on your licence for a minimum 6 months (for third or subsequent offences within 10 years)
Additional penalties if convicted:
- a minimum 1-year licence suspension for a first offence
- a minimum three-year licence suspension for a second offence within 10 years
- a possible lifetime licence suspension for a third or subsequent offence in 10 years (which may be reduced if certain criteria are met)
- enroll in a mandatory education or treatment program, use an ignition interlock device (for one, three or six years), and undergo a mandatory medical evaluation to determine whether you are meeting the requirements for driving in Ontario
The Ontario government has recently increased the penalties for the following other criminal driving offences:
- impaired driving
- violating the alcohol and drug zero tolerance requirement for young (21 and under), novice and commercial drivers
- failing a Standardized Field Sobriety Test (SFST)
If you are convicted of any of these offences, you will be subject to the following penalties:
First offence: Licence suspension for 3 days and $250 penalty
Second offence within 5 years: Licence suspension for 7 days and $350 penalty
Third and subsequent offences within 5 years:
- licence suspension for 30 days
- $450 penalty
- a mandatory alcohol education or treatment program (for third and subsequent offences within 10 years)
- an ignition interlock condition will be placed on your licence for at least 6 months (for third and subsequent offences within 10 years)
- you must submit to a mandatory medical evaluation to determine whether you meet the requirements for driving in Ontario (for fourth and subsequent offences within 10 years)
In addition to these penalties, for each time your licence is suspended, you may be subject to a $275 licence reinstatement fee.
Zero tolerance for drivers 21 and under, novice and commercial drivers
Any licensed drivers who are 21 years old and under, regardless of licence class, or novice drivers (with G1, G2, M1, or M2 licenses) caught with any alcohol or drugs (including cannabis or other drugs that can be detected by an oral screening device) in his or her system who are convicted in court, will face an additional fine of $60-$500 and an additional 30-day licence suspension. Commercial drivers (drivers of vehicles requiring an A-F class licence, vehicles requiring a CVOR – Commercial Vehicle Operator’s Registration, and road building machines) are also subject to the zero tolerance rule in Ontario.
For more information on zero tolerance and impaired driving in Ontario, visit ontario.ca.
Ignition Interlock condition
When using the Ignition Interlock Program, drivers must blow into an in-car alcohol breath-screening device that prevents a vehicle from starting if it detects a blood alcohol concentration (BAC) over a pre-set limit of 0.02 (i.e., 20 mg of alcohol per 100 ml of blood). The device is located inside the vehicle, near the driver’s seat, and is connected to the engine’s ignition system. For more information on the Ignition Interlock Program, visit ontario.ca.
Medical Cannabis users
Motorists who are legally authorized to use cannabis for medical purposes are exempt from Ontario’s zero tolerance drug rules for young, novice and commercial drivers. However, all Criminal Code driving offences will still apply. Even if you have been authorized to use cannabis by a health care professional, it is your responsibility to ensure you are not impaired while driving and that your cannabis blood level is under the prohibited limit.
2. Penalties under the Canadian Criminal Code
Penalties for a conviction of over the blood drug limits and blood alcohol limits are the same.
If you are convicted of impaired driving under section 320.14 of the Criminal Code, the minimum penalties are:
- for a first offence, a fine of $1,000,
- for a second offence, imprisonment for a term of 30 days, and
- for each subsequent offence, imprisonment for a term of 120 days.
It is important to note that minimum fines for a first offence, where there is a high blood-alcohol concentration (BAC) increase to:
- $1,500 for BAC of 120 mg but less than 160 mg, and
- $2,000 for BAC of 160 mg and above.
If convicted, the driver may also face:
- a jail term of not more than two years less a day if the offence is punishable on summary conviction (less serious), or
- imprisonment for a term of up-to 10 years, if the Crown prosecutor decides to proceed by indictment (more serious).
- first offence: minimum 1-3 year licence suspension
- second offence: minimum 2-10 year licence suspension
- third or subsequent offence: 3 year-lifetime licence suspension
In addition, the driver will have a criminal record.
If you were at fault for an automobile 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 a driving offence, it is important to hire an experienced criminal defence lawyer as soon as possible. Contact our preferred criminal defence expert, Calvin Barry Criminal Lawyers for a free consultation at 416-938-5858 .
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