Difference between revisions of "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.

Tip

If you are stopped by the police

If the police pull you over and have reasonable grounds to believe your ability to drive is affected by alcohol or a drug, 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 reasonably suspect you have alcohol in your body, 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.   

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 committed the offence in the previous three hours. This means the police must have good reason to believe your ability to drive is impaired by alcohol. 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 “over .08”. This amount is the legal limit under the Criminal Code.  

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 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 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.  

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.  

If you are charged with a criminal offence  

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

impaired driving (driving while your ability to operate a vehicle is impaired by alcohol or a drug)

driving with a blood-alcohol concentration over 80 milligrams of alcohol in 100 milliliters of blood (“driving while 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. They 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.

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 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.

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 over .08, the prosecutor must prove your blood-alcohol concentration was over 80 milligrams of alcohol in 100 milliliters of blood. The prosecutor must show the evidence of your blood-alcohol concentration was legally obtained.  

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.