Drinking and Driving (Script 190)

From Clicklaw Wikibooks

Impaired driving is a serious offence with complex legal and technical issues, as well as significant penalties if you’re convicted. Learn what to expect if you’re charged with impaired driving.

Understand your legal rights

BC and Canada both have impaired driving laws

Both BC and Canada have laws against driving while impaired by alcohol or drugs. Often, only the BC law applies. Sometimes, federal law (the Criminal Code) applies instead of — or in addition to — BC law.

It’s not a crime to drive with some alcohol or drugs in your body. But it is a criminal offence to drive if your ability to drive is even slightly impaired due to alcohol or drugs.

This information focuses on drinking and driving.

Tip

In BC, if your blood-alcohol level is over .05, there are legal consequences. (This level means you have 50 milligrams of alcohol in 100 millilitres of blood.) If you have been drinking, don't drive — take a taxi or bus or call a friend for a ride.

If you are stopped by the police

If the police lawfully pull you over, they can require you to take the following tests. They can require these tests even if you aren’t driving but have “care or control” of a vehicle. You can have care or control of a vehicle even if you were parked — if you were in the driver’s seat and had access to the ignition key.

Police can require you to blow into a roadside screening device

If the police lawfully stop you, they may demand you give a breath sample by blowing into a hand-held approved screening device (or ASD). The police can use your test results to issue a driving prohibition or hold you for further investigation.

The screening device tests for alcohol in your breath. Under BC law, a warn result means a blood-alcohol level over 50 milligrams of alcohol in 100 milliliters of blood (over .05). A fail result means a blood-alcohol level over .08.

If the screening device shows a warn result, the police will probably give you an immediate roadside prohibition. (We explain these below, under “Common questions”.)

If the screening device shows a fail, the police may give you an immediate roadside prohibition or they may demand you take a breathalyzer test as part of a criminal investigation.

You don’t have the right to speak to a lawyer before you decide whether to blow into a roadside screening device — you have to decide right away whether to blow. Refusing to blow or to provide a sample suitable for the screening device can lead to a driving prohibition or a criminal charge. It is highly advisable to make your best attempt to blow.

Tip

Under the law, a warn result means a blood-alcohol level over .05. A fail result means a blood-alcohol level over .08. In BC, roadside screening devices are set to show warn for blood-alcohol readings between .06 and .10, and fail for readings over .10. (The roadside screening devices allow more than the legal limits to avoid penalizing drivers who are at or near the limits and to account for the screening device’s margin of error.) If the roadside screening device shows a blood-alcohol reading below .06, the police will probably let you leave.

Police can require you to take a breathalyzer test

Under the Criminal Code, the police may demand you take a breathalyzer test if they have reasonable and probable grounds to believe you are committing the offence of impaired driving or have a blood alcohol level at or over .08 within two hours after driving. The police may use a fail reading from a roadside screening test to form their grounds to demand a breathalyzer test.

If the police demand you take a breathalyzer test

A breathalyzer is an instrument that measures the alcohol in your breath to see if you have more than 80 milligrams of alcohol in 100 millilitres of blood. If you do, you are “at or over .08”. This amount is the legal limit under the Criminal Code.

If the police demand you take a breathalyzer test, you must go with the police to where the breathalyzer instrument is located (usually, the local police station). As well, you must give breath samples (at least two for legally valid tests) so your blood-alcohol level can be analyzed.

Your rights when detained

When police make this demand, you are legally held, or detained. The police must tell you of your right to a lawyer and your other rights under the Charter of Rights and Freedoms before you provide breath samples. They must also give you a chance to contact a lawyer you choose before you give breath samples. This could be a private lawyer or a duty counsel provided by legal aid. The police must stop trying to get samples or other evidence from you until you have the chance to talk with a lawyer in private.

If you cannot give a breath sample because of your physical condition, the police may require you to let a qualified medical practitioner or designated police officer take samples of your blood for analysis. You have the right to speak to a lawyer before giving a blood sample.

If you are unconscious, you can’t agree to give a sample. The police must get a warrant to take samples, which they can get by phoning a judicial justice or judge.

You have the right to remain silent

You don’t have to tell the police whether you drank or how much you drank. You should not discuss with the police what you were doing before they stopped you. You should not speak to the police about your case. If your case goes to a trial, the court cannot use your refusal to speak with the police as evidence against you. You have a right to be silent.

If you refuse to blow (give a breath or blood sample)

If the police demand it, you must blow into a roadside screening device, and take a breathalyzer test. You must do these things unless you have a reasonable excuse not to. If you refuse to do them, you are committing an offence.

Generally, it is best to genuinely try to provide proper breath samples if the police demand you do so. You have a legal duty to make genuine attempts to provide suitable breath samples. Making genuine attempts to blow that do not work is not an offence.

Courts are strict about what a reasonable excuse is. For example, you may have a reasonable excuse to refuse a breathalyzer demand if the police don’t let you speak privately to a lawyer first. But you must assert or claim your right to a lawyer. This means that when the police tell you your rights under the Charter, you must say you want to use, or exercise, those rights and speak to a lawyer.

The legal issues are complex and the best suggestion is this: if the police demand you take a breathalyzer test, talk to a lawyer before doing so. Then, follow the lawyer’s advice.

If you are charged with a criminal offence

Police can charge you with any of three impaired driving-related offences under the Criminal Cod:

  • impaired driving (driving while your ability to operate a vehicle is impaired by alcohol or a drug)
  • having a blood-alcohol concentration at or over 80 milligrams of alcohol in 100 milliliters of blood within two hours after driving (“at or over .08”)
  • failing or refusing to provide breath or blood samples on demand (“refusing to blow”)

These charges can apply if you’re driving a vehicle, a boat, a plane, or other vessel. The charges can apply even if you weren’t driving and didn’t move the vehicle — as long as you had “care or control” of it. You can have care or control of a vehicle even if you were parked — if you were in the driver’s seat and had access to the ignition key.

If your breathalyzer results were at or over .08, you will typically be charged with being at or over .08 within two hours of driving. If you failed to give a breath or blood sample, you will be charged with refusing to blow. In either case, you will also typically be charged with impaired driving.

Driving prohibition

If the police charge you with one or more of these three offences, the investigating police officer will typically issue you with a 24-hour roadside prohibition. This takes effect immediately. They also typically issue a 90-day administrative driving prohibition. This driving prohibition starts 21 days after the police give you a copy of the notice of prohibition. (You can ask for a review of this prohibition, but you must do so within seven days. We explain how below.)

Going to court

If you are charged with any of the three Criminal Code offences, you will have to go to court (or have an agent go on your behalf). As there are a number of complex technical and legal issues, it is highly advisable to get help from a lawyer. We suggest options shortly for finding a lawyer.

If you fight the criminal charges in court

In responding to impaired driving-related charges under the Criminal Code, you must decide how to plead. Pleading guilty means you accept responsibility for the offence. Pleading “not guilty” means the court will set a trial.

At the trial, the prosecutor must prove beyond a reasonable doubt that you committed the offence.

For impaired driving, the prosecutor must prove your ability to drive a motor vehicle was impaired by alcohol or a drug. The prosecutor does not have to prove you were drunk.

For at or over .08, the prosecutor must prove your blood-alcohol concentration was at or over 80 milligrams of alcohol in 100 milliliters of blood within two hours after you drove. The prosecutor must show the evidence of your blood-alcohol concentration was legally obtained.

For failing to blow, the prosecutor must prove you failed to give samples — without a reasonable excuse.

The prosecutor normally calls as witnesses the police officer who stopped you, and any other people who saw you. The witnesses tell the judge how you acted, whether you refused to give samples, and what signs of impairment they noticed. Common signs of impairment include bad driving, the smell of liquor on the breath or body, bloodshot eyes, poor balance, slurred speech, flushed face, and any other abnormal behaviour.

You have the right to testify (tell the court your story). You don’t have to. But you may want to if you can counter what the witnesses said and raise a reasonable doubt as to whether you were impaired. For example, perhaps you had an ear infection that affected your balance, or some physical problem that caused you to slur your speech. Whether to testify is a decision you ideally make with the help of a lawyer.

If you are convicted of criminal charges

For a first offence of at or over .08 or impaired driving, the mandatory minimum sentence is a $1,000 fine and a driving prohibition of at least one year and up to three years. That is the usual sentence, unless the judge considers your case more serious because of aggravating facts such as high breathalyzer readings or an accident. For a first offence of refusing to blow, the mandatory minimum sentence is a $2,000 fine and a driving prohibition of at least one year and up to three years. Any conviction under these sections of the Criminal Code means you get a criminal record. A judge cannot give you a discharge.

Previous drinking and driving convictions mean higher penalties — usually at least 30 days in jail for a second offence, and at least 120 days in jail for each offence after that. Plus, driving prohibitions are longer: between three and five years for a second conviction and a lifetime prohibition for a third or later conviction.

If there was an accident

If you were in an accident, you may be personally responsible for all the costs ICBC pays. And if you kill or injure someone while driving impaired, you risk being sued for a lot of money and having your insurance company deny coverage. The penalty for killing someone while impaired or at or over .08 is always a jail term. It’s the same for refusing to blow if it was reasonable to assume that the driving caused death or bodily harm.

Insurance premiums

An impaired driving-related conviction under the Criminal Code means you will pay more in vehicle insurance premiums, under an ICBC program called driver risk premiums. This program applies to more serious driving offences. For more, see our information on the points system and ICBC (no. 187).

Criminal record

A conviction under the Criminal Code stays on your criminal record and driving record forever. After some time, you can usually ask for a record suspension, which limits access to your criminal record, but even that won’t erase the conviction from your record.

Common questions

Can the police prohibit me from driving based on my roadside screening test results?

Yes. Police can issue an immediate roadside prohibition if your breath sample on a roadside screening device shows a warn or fail result, and police have reasonable grounds to believe your ability to drive is affected by alcohol.

Under BC law, a warn result means a blood-alcohol level over 50 milligrams of alcohol in 100 milliliters of blood (over .05). A fail result means a blood-alcohol level over .08.

If you get a warn result, the driving prohibition police can issue will vary depending on whether you have previous roadside prohibitions. If it is your first prohibition, you’ll get a 3-day driving prohibition. You’ll get a 7-day driving prohibition for a second prohibition, and a 30-day driving prohibition for any subsequent prohibition.

If you get a fail result, the driving prohibition police can issue will be for 90 days.

If police give you an immediate roadside prohibition, they will also impound your vehicle (have it towed). You will be required to pay for the towing and storage. You must also pay penalties and fees, and participate in driver safety programs. As well, your vehicle insurance premiums may increase.

Tip

Under BC law, if your breath sample on a roadside screening device shows a warn or fail result, you have the right to request a second test using a different roadside screening device. You get the benefit of the lower of the two readings. The police have to inform you of this right before giving you a driving prohibition.

Can the police prohibit me from driving even if they don’t give me a breath test?

Yes. Under BC’s driving laws, if the police have reasonable grounds to believe a driver’s ability to drive is affected by alcohol or a drug, they can issue a 24-hour roadside prohibition. They do not have to test your blood-alcohol level. If you disagree, you can ask for a breath test on a roadside screening device. But if you get a warn or fail result on the screening device, police can use it to issue an immediate roadside prohibition or to hold you for a criminal investigation.

Can I challenge a driving prohibition issued by the police?

Yes. Police send a copy of any driving prohibition notice they issue to ICBC to be placed on your driver’s record. You can ask RoadSafetyBC for a review of a driving prohibition. You must apply within seven days of when you get the notice of prohibition.

To ask for the review, you fill in an application form available at any ICBC driver licensing office. You must also pay a fee that depends on whether you make your case in writing or orally. A decision will usually be made within 21 days of when you got the prohibition notice. The grounds to dispute the prohibition vary depending on the type of prohibition. The possible defences are not limited to the grounds to dispute. An expert on police procedure may be available through a lawyer to provide evidence in your case. Close to a quarter of immediate roadside prohibitions are revoked (cancelled) on review.

During the review process, you are still prohibited from driving.

Are the rules different for new drivers?

A new driver participating in BC’s graduated licensing program (a learner or novice driver) can be given a 12-hour roadside suspension of their driver’s licence if a breath test on an approved screening device shows they have any alcohol in their body. There is no review available of this suspension.

As well, they have to start their current stage of the licensing program over again (for example, novice drivers will start over at the beginning of their 24-month N licensing period).

If a new driver gets a result over .05 on a screening device, they also face the regular consequences fully-licensed drivers face.

How does a breathalyzer instrument work?

Breathalyzer instruments are designed to obtain scientifically and legally valid breath tests. Approved breathalyzer instruments used in Canada test themselves before and after each breath test. They produce a printout of the estimated blood-alcohol concentration. The printout can be used as evidence in court. In BC, breathalyzer instruments are usually located only in designated rooms in police stations.

A breathalyzer instrument captures a tiny bit of breath toward the end of the blowing sequence to measure the concentration of alcohol in your breath. Alcohol in the breath sample condenses on a small metal surface. The alcohol generates an electrical current, which a computer in the breathalyzer measures. The computer calculates an estimated blood-alcohol concentration based on the estimated breath-alcohol concentration. It reports the results in milligrams per 100 milliliters. A reading of at or over 80 milligrams (called “at or over .08”) means you can be convicted of a criminal offence for having a prohibited blood-alcohol content within two hours after driving.

The technician who operates the approved instrument will ask you to blow into a plastic mouthpiece connected to the breath tube attached to the side of the instrument. It can take several minutes to analyze the sample. The technician will wait at least 15 minutes and then usually ask you to do it again. When the test is finished, a police officer will give you a certificate describing the test results. Keep this document in its original condition. Don’t write on it or damage it.

What if I lend my car to someone who drinks and drives?

Several penalties from drinking and driving apply only to the driver — any driving prohibition, fines or jail sentences, increased vehicle insurance premiums, and driver safety programs. But other consequences apply to the vehicle owner. For example, if your car was impounded, you must pay towing and impoundment fees. If there was an accident, you can be exposed to significant costs. You probably don’t want to lend your car to someone who may drink and drive.

Get help

Finding a lawyer

The legal issues for impaired driving can be complex and a conviction can seriously harm you. There are lawyers who specialize in drinking and driving cases. You can call the Lawyer Referral Service to get the name of a lawyer. For $25 plus taxes, you can speak to the lawyer for 30 minutes about your case, to help decide whether you would want to hire them.

Toll-free: 1-800-663-1919
Web: cbabc.org

You can contact Legal Services Society to find out if you qualify for a free lawyer under legal aid.

Telephone: 604-408-2172 in Greater Vancouver
Toll-free: 1-866-577-2525
Web: legalaid.bc.ca

If you can’t afford to hire a lawyer and you don’t qualify for legal aid, try to talk with a lawyer before deciding how to respond to any charge against you. On your first appearance in court or when you enter your plea, you can talk to duty counsel at the courthouse. These are lawyers who give free legal advice to people who have a case in the courthouse on that day.

Web: legalaid.bc.ca

More information

The BC government website includes information on driving prohibitions, suspensions, and impaired driving.

Web: gov.bc.ca/driving

ICBC has information on the driver risk premium. Toll-free: 1-800-663-3051

Web: icbc.com


[updated February 2019]

The above was last reviewed for legal accuracy by Paul Doroshenko QC, Acumen Law Corporation.



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