One topic discussed during holiday parties this year will be Canada’s new impaired driving laws. What are they? How do they affect motorists? What happens if you drink and drive? This blog post will answer some of these questions.
As always, what follows is legal information, not legal advice. If you have a legal question about drinking and driving, contact me at [email protected]
The Police Can Require You to Blow at the Roadside
The most noticeable impact under the new law is that the police can require a driver to blow into a roadside screening device to test for illegal drinking and driving for any reason, provided there is a roadside screening device on hand. It used to be that the police needed reasonable grounds to suspect alcohol was in the driver’s body. This is why the police at RIDE programs always ask, “have you had anything to drink tonight?”As soon as the driver says "yes", she or he provides the police with the necessary grounds to demand that she or he blow into a device at the roadside. Under the new law, the driver can be required to blow into the device even if they say “no”.
As for doing drugs and driving, the police must still meet the old ‘reasonable grounds’ standard to demand a test for drugs.
If you drive during any holiday season be prepared to be stopped by the police – and be prepared to blow into a roadside screening device for alcohol.
The best defence to the new law is to not drink and drive.
Increased Penalties
The penalties for drinking or consuming drugs and driving have been ramped up. The penalties used to be $1,000 for a first offence, 30 days imprisonment for a second offence, and 120 days in jail for a third offence. The penalties are much higher now:
Penalties for drug-impaired driving
Alcohol-impaired
- Charge:
- Alcohol-impaired driving
- Having a Blood Alcohol Concentration (BAC) at or over 80mg per 100ml of blood within 2 hours of driving
- Penalty:
- 1st offence: Mandatory minimum $1000 fine; Maximum 10 years imprisonment
- 2nd offence: Mandatory minimum 30 days imprisonment; Maximum 10 years imprisonment
- 3rd offence: Mandatory minimum 120 days imprisonment; Maximum 10 years imprisonment
Drug-impaired
- Charge:
- Drug-impaired driving
- Having 5ng or more of THC per ml of blood within 2 hours of driving
- Any detectable level of LSD, psilocybin, psilocin, ketamine, PCP, cocaine, methamphetamine, 6-mam within 2 hours of driving
- Having 5mg or more of GHB per 1 litre of blood within 2 hours of driving
- Penalty:
- 1st offence: Mandatory minimum $1000 fine; Maximum 10 years imprisonment
- 2nd offence: Mandatory minimum 30 days imprisonment; Maximum 10 years imprisonment
- 3rd offence: Mandatory minimum 120 days imprisonment; Maximum 10 years imprisonment
Combination
- Charge: Having a BAC of 50mg per 100ml of blood + 2.5ng or more of THC per 1ml of blood within 2 hours of driving
- Penalty:
- 1st offence: Mandatory minimum $1000 fine; Maximum 10 years imprisonment
- 2nd offence: Mandatory minimum 30 days imprisonment; Maximum 10 years imprisonment
- 3rd offence: Mandatory minimum 120 days imprisonment; Maximum 10 years imprisonment
Charge: Refusal to comply with demand for sample
- Penalty:
- 1st offence: Mandatory minimum $2000 fine
- 2nd offence: Mandatory minimum 30 days imprisonment; Maximum 10 years imprisonment
- 3rd offence: Mandatory minimum 120 days imprisonment; Maximum 10 years imprisonment
Drug-impaired driving - Summary conviction
- Charge: Having over 2ng but less than 5ng of THC per ml of blood within 2 hours of driving
- Penalty: Maximum $1000 fine
Charge: Impaired driving causing bodily harm
- Penalty:
- Summary conviction: maximum 2 years imprisonment less a day
- Indictment: maximum 14 years imprisonment
Charge: Impaired driving causing death
- Penalty:
- Indictment: Maximum life imprisonment
Charge: 1st offence + BAC of 80-119 ml
- Penalty: mandatory minimum $1000 fine
Charge: 1st offence + BAC of 120-159ml
- Penalty: mandatory minimum $1500 fine
Charge: 1st offence + BAC of 160 mg or more
- Penalty: mandatory minimum $2000 fine
Some Defences Have Been Removed
A sneaky argument for drinking and driving defences used to be that the driver consumed alcohol after they were driving. This defence was sometimes used, for example, when a motorist crashed their vehicle and left the scene. Once they were caught and brought to trial, they would raise the possibility that they consumed alcohol after the crash, when they were not driving, rather than not prior to the crash, when they definitely were driving. This raised a reasonable doubt that alcohol was a contributing factor to the crash.
The new law eliminates this defence. It is now illegal to be at or over the alcohol limit within two hours of driving. In theory this means that a person is guilty drinking and driving if they drive and, after leaving their vehicle, drink in excess of the legal limit in their home. This is absurd, right? It will likely be constitutionally challenged.
The Opportunity for Racial Profiling
Under the new law, the police can pull over any vehicle and demand that the driver blow into a ‘breathalyzer’, even if they have no reason to believe that the driver has alcohol in their body. The law is ripe for abuse. A police officer can pull someone over for prejudicial reasons and use drinking and driving as a pretext for the stop. The police officer’s motive is impossible to test in court. How do you prove that you were stopped for prejudicial reasons when the police can stop you for drinking and driving at any time?
Moreover, you can be frisked when you step outside of your vehicle to blow into the ‘breathalyzer’. This too is ripe for abuse.
I predict that the new law requiring roadside breath samples will be constitutionally challenged .