Area of Law: Criminal Law
Answer Number: 773
Impaired driving (DUI / DWI)Region: Ontario Answer Number: 773
Impaired driving, also commonly known as DUI or DWI, means being in control of a vehicle while under the influence of alcohol or drugs, or a combination of the two, and is a serious offence under the Canadian Criminal Code.
What is considered impaired driving?
You do not have to exceed the legal blood alcohol limit to be charged with impaired driving. The only requirement for a charge of impaired driving is that your ability to drive was affected by alcohol or drugs, regardless of how much or how little was actually consumed.
How the police assess whether you are impaired
The police will make a judgment about your ability to drive safely based on a number of observations, including your appearance, your answers to questions, your physical movement, and whether you or your car smell of alcohol. 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, car ownership, and insurance papers.
To test a driver’s alcohol consumption, the police have the legal right to administer certain tests at the side of the road after someone has been pulled over: a breath-screening test, and the Standardized Field Sobriety Test (SFST). They may also demand an oral fluid (saliva) sample to test for drug impairment.
Mandatory alcohol breath screening tests
Under recent changes to Section 253 of the Criminal Code (as per Bill C-46), 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 lawful reason, such as a traffic violation, or a check stop, may be required to provide a breath test.
Further changes to the law also allow police officers to demand a breath test for impaired driving up-to two hours after a person has been driving, meaning they do not have to be operating a motor vehicle at the time. Persons who are found impaired within this 2-hour period face new Criminal Code offences with penalties that include mandatory fines and up-to life in prison, depending on the severity of the offence. It is up to the driver to prove they only consumed alcohol after they stopped driving.
You do not have the right to consult a lawyer before performing the roadside test. However, if you are taken to the police station for further breath tests, you do have the right to have a lawyer present.
Testing for drug impairment
If a police officer suspects a driver has drugs in their system, they may demand a roadside oral fluid sample and/or conduct a Standardized Field Sobriety Test. If the driver fails the SFST or provides a positive oral sample test, they may be arrested and taken to a police station for further tests, which could include a drug recognition evaluation, providing a blood sample, or additional bodily fluid samples (urine or oral) to confirm previous findings of impairment.
A drug recognition evaluation includes sobriety tests that are similar to tests for alcohol impairment, taking blood pressure, oral body temperature and pulse, and measuring pupil size in different lighting conditions.
Failing a breath test or SFST or refusing to provide a breath sample can result in serious charges under the Canadian Criminal Code.
Drivers who fail to comply with a drug recognition evaluation, or who comply and are deemed to be under the influence of drugs, will be subject to criminal charges that carry the same penalty as driving while impaired by alcohol.
For more information on how police test drivers for impaired driving, view Breathalyzer and roadside tests.
Penalties for impaired driving
There are penalties under both the Ontario Highway Traffic Act and the Canadian Criminal Code for impaired driving.
Highway Traffic Act
There are a number of offences that impaired drivers could face in Ontario. These include:
- refusing to take a drug or alcohol screening test
- testing over the legal limit of 0.08
- a drug recognition evaluator determines you are impaired
Penalties for these 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)
If you are found guilty in court of these offences, you will be subject to the following additional penalties:
- 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)
You will also have to enrol 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 meeting the requirements for driving in Ontario.
The Ontario government has recently increased the penalties for the following other impaired driving offences:
- registering a blood alcohol concentration of between 0.05 and 0.8 (50 – 80 milligrams of alcohol in every 100 millilitres of blood), known as the “warn range”
- 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 commit any of these offences, you will be subject to the following penalties:
- licence suspension for 3 days
- $250 penalty
Second offence within 5 years:
- licence suspension for 7 days
- $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 young and novice drivers
Any licensed drivers who are 21 and under, regardless of licence class, or novice drivers 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.
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.
Drug impaired driving can still lead to the same criminal charges, and penalties, as alcohol impaired driving.
Canadian Criminal Code
Criminal Code impaired driving laws refer to impairment by alcohol, drugs and a combination of both. The prohibited levels of each are as follows:
- Alcohol: a blood-alcohol concentration (BAC) is 80 milligrams or more (mg) of alcohol per 100 milliliters (ml) of blood
- 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: 50mg or more of alcohol per 100ml blood and 2.5 ng or more of THC per ml of blood.
If you are found guilty of impaired driving under the Criminal Code, you will be subject to:
- a mandatory minimum $1,000 fine and a maximum 10 years in prison for a first offence,
- a mandatory minimum 30 days in prison up-to a maximum 10 years for a second offence
- a mandatory minimum 120 days in prison up-to a maximum 10-years for a third offence
In addition, being convicted of impaired driving means you will have a criminal record.
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 the Ontario Ministry of Transportation website.
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 impaired driving, contact our preferred criminal law experts:Charitsis Law
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