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, 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.
Performing physical tests
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, you are not required to co-operate with the police. However, failing to comply may lead the police to suspect that you are impaired, and they may then demand that you provide a breath sample.
There are penalties under both the Ontario Highway Traffic Act and the Canadian Criminal Code for impaired driving.
Highway Traffic Act
In Ontario, if you are arrested for impaired driving and then you refuse to provide a breath sample or you provide a breath sample which shows that your blood alcohol level is over 80 mg, then your driver’s licence will be automatically suspended for 90 days. You will also have to pay a $180 administrative penalty and your vehicle will be impounded for seven days.
If you fail a roadside sobriety test by registering a blood alcohol concentration of between 0.05 and 0.08 (50 – 80 milligrams of alcohol in every 100 millilitres of blood), the police can immediately suspend your licence for three days for a first occurrence. This is known as the “warn range”. Your licence can be suspended for seven days for a second occurrence and you must undergo an alcohol education or treatment program and an ignition interlock condition will be placed on your licence. Your licence can be suspended for 30 days for a third or subsequent occurrence and you will face a mandatory alcohol education or treatment program and an ignition interlock condition will be placed on your licence.
Any licensed drivers who are 21 and under, regardless of licence class, or novice drivers caught with any alcohol in his or her blood, will receive an immediate 24-hour roadside driver licence suspension and, if convicted, will face a fine of $500 and a minimum 30-day licence suspension.
On June 2, 2015 Ontario passed the Making Ontario’s Roads Safer Act in its effort to improve the safety of Ontario roads. As of October 2, 2016, under this Act, drivers caught under the influence of drugs 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.
After failing a roadside sobriety test (which may include walking heel-to toe in a straight line, standing on one foot during a mental challenge, or an eye exam), drug-impaired drivers face:
- the same immediate licence suspensions and $180 fine as drivers impaired by alcohol;
- a possible 90-day licence suspension and 7-day vehicle impoundment after further testing by a drug recognition expert, done at a police station (such as blood pressure and body temperature testing); and
- mandatory education or treatment programs, and installation of an ignition interlock device in their vehicle.
As well, drug impaired driving can still lead to the same criminal charges as alcohol impaired driving, which result in a possible loss of licence, additional fines and jail time.
Canadian Criminal Code
If you are convicted of impaired driving, you will usually receive a fine of about $1,000 and your licence will be suspended for one year. For a second impaired driving 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, possibly a lifetime suspension. In addition, being convicted of a criminal driving offence means that you will have a criminal record.
Ignition Interlock condition
Along with fines, licence suspensions, or jail time, the court may also order impaired drivers to enroll in a drug or alcohol rehabilitation program, or the Ignition Interlock Program. The Criminal Code allows each province to implement an Ignition Interlock Program.
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.
In Ontario, drivers will be subject to the Ignition Interlock Program if they are:
- convicted of an impaired driving or drinking and driving-related offence under the Criminal Code of Canada
- suspended for registering a blood alcohol concentration (BAC) of 0.05 to 0.08 three or more times in a five-year period.
First-time offenders will have an ignition interlock condition placed on their Ontario driver’s licence for a minimum of 1 year, while second-time offenders will have the condition for a minimum of 3 years. Third-time offenders will have the condition on their licence indefinitely if it is reinstated after a minimum 10-year suspension. The program does not apply to fourth-time offenders, as their licence will never be reinstated.
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:
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