Difference between revisions of "Motor Vehicle Offences for Drugs and Alcohol (13:IX)"

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Section 253(1)(a) of the ''Criminal Code'' makes it an offence either to operate or to be in care or control of a motor vehicle while alcohol  or drugs impair one’s ability to drive. Section 253(1)(b) makes it an offence to either operate or be in the care or control of a motor vehicle with a blood-alcohol concentration reading in excess of 80 milligrams of alcohol per 100 millilitres of blood. With a charge under s 253, the Crown must prove driving if driving is charged or prove care or control if care or control is charged. These are two separate and distinct offences and neither is included in the other: ''R v Henryi'', (1971), 5 CCC (2d) 201 (BC Co Ct); ''R v Jones'' (1974), 17 CCC (2d) 221 (BCSC); and ''R v Faer'' (1975), 26 CCC (2d) 327 (Sask CA). Since it is difficult to conceive of a situation when driving is not also care or control, the Crown will almost always charge care or control.
Section 253(1)(a) of the ''Criminal Code'' makes it an offence either to operate or to be in care or control of a motor vehicle while alcohol  or drugs impair one’s ability to drive. Section 253(1)(b) makes it an offence to either operate or be in the care or control of a motor vehicle with a blood-alcohol concentration reading in excess of 80 milligrams of alcohol per 100 millilitres of blood. With a charge under s 253, the Crown must prove driving if driving is charged or prove care or control if care or control is charged. These are two separate and distinct offences and neither is included in the other: ''R v Henryi'', (1971), 5 CCC (2d) 201 (BC Co Ct); ''R v Jones'' (1974), 17 CCC (2d) 221 (BCSC); and ''R v Faer'' (1975), 26 CCC (2d) 327 (Sask CA). Since it is difficult to conceive of a situation when driving is not also care or control, the Crown will almost always charge care or control.
The court in ''R v Kienapple'' [1974], 15 CCC (2d) 524 (SCC) held that an accused cannot have multiple convictions for the same act. Therefore, '''an accused cannot be convicted of both impaired driving and having a blood alcohol concentration exceeding 80 milligrams'''.
The Crown can establish acts of care or control in two ways:
*a) Pursuant to ''Criminal Code'' s 258(1)(a), where a person is occupying the seat or position ordinarily occupied by the person who operates  the motor vehicle, that person will be presumed to be in care or control unless he or she establishes that he or she did not occupy that seat or position for the purpose of setting the vehicle in motion; or
*b) If the Crown is unable to rely on this presumption (i.e. the accused establishes that he or she did not enter the vehicle with the intent  to set it in motion), the Crown must then prove acts of care or control which have been defined as any use of the vehicle or its fittings and equipment or some course of conduct associated with the vehicle which create the danger or risk of putting the vehicle in motion: ''R v Toews'' (1985), 21 CCC (3d) 24 (SCC).
A peace officer may demand a breath or blood sample pursuant to ''Criminal Code'' s 254(3) if the peace officer has reasonable and probable grounds to believe the individual is impaired or has a blood alcohol level over .08. Reasonable and probable grounds may include factors such as the physical condition of the person, if the person is incapable of providing a sample of his or her breath, or that it would be impracticable to obtain a breath sample (s 254(3)). Refusal to provide a sample is a criminal offence (s 254(5)).
For a charge under s 253(1)(b), the Crown may prove a blood alcohol reading in excess of .08 by producing a valid certificate of analysis or providing ''vive voce'' testimony at trial from a registered analyst or breathalyzer technician about the blood alcohol concentration at the time the accused provided a breath sample.
Once a certificate has been prepared or the Crown has tendered ''vive voce'' evidence of the blood  alcohol concentration, the Crown can rely on the presumption commonly known as the “presumption back” set out in ''Criminal Code'' s 258(1)(c). Under this section, where samples of  breath are taken within two hours from the time the offence is alleged to have been committed, the concentration of alcohol in the blood reflected by those samples will be assumed to have been the concentration of alcohol in the blood at the time of the offence unless the accused raises evidence to the contrary (i.e. that he or she consumed more alcohol between being stopped and the time the sample was taken). Please  note that the “presumption back” applies only to samples demanded pursuant to s 254(3) and not s 254(2), which is for screening purposes (see [[{{PAGENAME}}#2. Refusing to Provide a Breath or Blood Sample | Section IX.2: Refusing to Provide a Breath or Blood Sample]]). The “presumption back” also applies to a blood sample (s 258(1)(d)).
Note that this presumption pertaining to the evidence contained in the breathalyzer certificate does not offend s 11(d) of the Charter which  protects the presumption of innocence: ''R v Bateman'', [1987] BCJ No 253; 46 MVR 155 (BC Co Ct).
As stated above, a conviction requires the production of a valid certificate or ''vive voce'' testimony at trial from a registered analyst or  a breathalyzer technician. However, the breathalyzer technician or registered analyst must have the requisite qualifications.
==== a) Penalties ====
Under Criminal Code s 255, impaired driving is a hybrid offence. The minimum fine for a first offence is $1,000. If convicted of an indictable  offence under s 255, the accused may be liable for a maximum of 5 years’ imprisonment. If convicted on summary conviction, the accused may be liable for up to 18 months’ imprisonment.
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