Impaired Driving 

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Contents

Impaired Driving, “Over 80", And Refusal

A Person’s Right To Contact A Lawyer

Penalties For Impaired Related Offences

Licence Suspensions

The Ignition Interlock Program

Referral Numbers

 


Impaired Driving

WHAT IS THE LAW?

There are three main impaired driving related offences:

1. Impaired driving

2. "Over 80", and

3. Refusal or failure to blow or provide a blood sample.

 

1. Impaired Driving: It is an offence to operate a motor vehicle or vessel, or operate or assist in the operation of an aircraft or railway equipment; OR to have care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug".

 

2. "Over 80": It is an offence for a person to operate a motor vehicle with blood alcohol level exceeding 80 milligrams of alcohol in 100 millilitres of blood (80 mg%).

 

3. Refusal or failure to blow or provide a blood sample: It is an offence to refuse to blow or give a blood sample without a reasonable excuse when there is a lawful demand for you to do so. 

 

WHAT IS MEANT BY "IMPAIRED"?

Using either alcohol or drugs can impair your ability to drive. “Drugs” is given a broad but reasonable meaning. This means that drugs include both prescription and non-prescription drugs, and any other chemical agent that may cause impairment.

 

Courts are likely to consider glassy or bloodshot eyes, unsteady walk, slurred speech, irregular driving pattern, or a smell of alcohol on the breath as common physical signs of impairment. While these are the most common signs of impairment, there may be many others.

 

WHAT IS MEANT BY "CARE AND CONTROL"?

A person may be in care and control of a motor vehicle if the person has the ability to set the vehicle in motion, or where there is a risk that the person could put the vehicle in motion either on purpose or by accident.

 

If someone is found in the driver’s seat of a motor vehicle, care and control is presumed unless it can be shown that he or she did not occupy that seat for the purpose of setting the vehicle in motion. Even if the person is not driving or not in the driver’s seat (ex: sitting in the passenger’s seat), that person may still be found to be in care and control, if it is proven that he or she was using the motor vehicle in such a way that it may be set in motion. So, there is a danger of being found guilty even if a person is just sleeping in a motor vehicle. 

 

WILL A PERSON BE ARRESTED IF SUSPECTED OF COMMITTING ANY ONE OF THESE OFFENCES?

Yes. If an officer has reasonable and probable grounds to believe that either someone’s ability to drive is impaired, or his/her blood alcohol level is “over 80", the officer can make an arrest immediately. An officer may have reasonable and probable grounds by taking into consideration any physicial signs of impairment or through the use of a "roadside screening device".

 

WHAT IS A ROADSIDE SCREENING DEVICE?

If someone is driving or has care and control of a motor vehicle and a police officer has a reasonable suspicion that he or she has alcohol in their body, the officer may demand that the person use a roadside screening device. This suspicion may come from any physical signs of intoxication, an irregular driving pattern, or from any statements made.

 

A roadside screening device is a portable instrument that is kept in many police cars. The device gives an informal measure of a person’s blood alcohol level.  It is not against the law to fail a roadside screening device test, but failing this test will give the officer reasonable and probable grounds to detain the person and demand a formal breath or blood sample as soon as possible.

 

A person who refuses a roadside screening device test may be charged with “refusal to blow”.

 

WHAT IS THE APPROVED INSTRUMENT OR BREATHALYSER TEST?

The approved instrument often referred to as the "breathalyser." A "breathalyser" is a machine that measures someone's blood alcohol level. If an officer has reasonable and probable grounds to believe that a person has committed an impaired or an “over 80" offence within the preceding three hours, they can demand that the person provide a breath sample into a "breathalyser."

 

The demand and breath samples must be made and taken immediately or as soon as practicable once an officer has reasonable and probable grounds for arrest. The test is generally done either at the police station or at a mobile testing station.

 

A person will be required to provide at least two samples of breath by blowing into the mouthpiece of a breathalyser machine. The samples must be taken at least 15 minutes apart.

 

If the test indicates that a person’s blood alcohol content exceeds the legal limit of 80 milligrams of alcohol in one hundred millilitres of blood (80 mg%), the breathalyser technician will complete a Certificate of Analysis. If someone is charged with an “over 80" offence, a copy of this certificate will be given to him or her. It is this certificate that is generally allowed as evidence at trial to prove that the blood alcohol level was over the legal limit.

 

The test results shown on the certificate are presumed to be the actual blood alcohol level and will be accepted at trial unless you can provide evidence that shows your blood alcohol level was not over the legal limit.

 

Refusing or failing to provide "an adequate" breath sample is itself a criminal offence.

 

WHEN CAN AN OFFICER DEMAND A BLOOD SAMPLE?

If an officer has reasonable grounds to believe that, because of any physical condition, a person may not be capable of providing a breath sample, or it would be impractical to get a breath sample, he or she may demand that a blood sample be taken. These samples will then be used to determine the level of alcohol in the blood. If a blood sample shows a blood alcohol level above the legal limit, a person will be given a Certificate of Analysis and will be charged with an “over 80" offence.

 

These samples of blood can only be taken by, or under the direction of, a qualified medical practitioner who is sure that taking the samples will not endanger the person’s life or health.

 

A person must be able to give informed consent to the taking of the blood samples (he or she must have enough information about how it works and be able to agree to give samples).  If someone is unable to give informed consent due to a mental or physical condition, such as injuries from a car accident, a police officer may be able to get a judge to give her permission to take the samples. These samples will be taken under the supervision of a qualified medical practitioner.

 

If you refuse a demand for a blood sample, you can be charged with failure to comply with a demand if you do not have a reasonable excuse.

 

HOW CAN I BE CHARGED WITH A REFUSAL TO BLOW OR GIVE BLOOD SAMPLES?

If someone refuses to comply with a valid demand for a roadside screening test, a breathalyser test, or a blood sample, he or she can be charged with refusal under section 254(5) of the Criminal Code.  Having a "reasonable excuse" is a defence to this charge.

 

Generally, a “reasonable excuse” is anything which makes compliance either extremely difficult or puts the person’s health substantially at risk.

 

If convicted of refusal to blow or give a blood sample, you will receive the same penalty and driving prohibition/suspension as if you did give the sample and were found “over 80”.

 

CAN A PERSON BE CONVICTED OF BOTH IMPAIRED AND "OVER 80"?

No. While a person can be tried and found guilty of both, the rule against double punishment means that there would be an automatic judicial stay on one.

 

CAN A PERSON BE CONVICTED OF BOTH REFUSAL TO BLOW AND IMPAIRED?

Yes. A person can be convicted of both refusal to blow AND impaired driving if the evidence proves they are guilty of both.  The legal consequences of being convicted of refusal are the same as for impaired driving or driving “over 80".

 

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A Person’s Right To Contact A Lawyer Or To Be Informed Of That Right

WHEN DOES A PERSON HAVE THE RIGHT TO CONTACT A LAWYER?

A person does NOT have the right to contact a lawyer before taking the roadside screening test. The right is suspended for the roadside demand.

 

A person does have the right to speak to a lawyer before providing a breath sample into a "breathalyser" or "intoxilyzer" conducted either at roadside mobile testing stations or at a police station. 

 

WHAT MUST THE POLICE DO TO HELP A PERSON TO CONTACT A LAWYER?

When they arrest or detain someone, the police must inform the person of the right to contact a lawyer and provide information about Legal Aid and duty counsel. The information must be complete and the police must explain how to reach these services which provide free and immediate legal advice. Even if a person cannot afford to hire a lawyer, he or she still has the right to speak to a lawyer for free before taking any tests.

 

The police must give a reasonable chance and a reasonable amount of time to contact a lawyer. Normally, this means that the police will put a person in a room or roadside van alone with a telephone, a phone book, and a legal aid or duty counsel list. These lists provide the names of several lawyers who a person can speak with immediately, 24 hours a day, and free of charge.

 

WHAT IF A PERSON'S RIGHT TO CONTACT A LAWYER HAS BEEN DENIED?

If this right has been denied, the evidence of the breath or blood samples may not be allowed as evidence at trial because of the violation of Charter rights. But, evidence obtained before arrest or detention may still be enough to convict a person of impaired driving.

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Penalties For Impaired Related Offences

Impaired driving and “over 80” are both “hybrid offences”, meaning that the Crown may proceed by either summary conviction or by indictment. In deciding how to proceed, the Crown will consider any past related criminal record the accused may have as well as the circumstances of the offence. Each time someone re-offends, the Crown will likely seek a more serious penalty. Prior to pleadings, the prosecutor will inform the accused of how the Crown will be proceeding. Note: impaired driving causing bodily harm or impaired driving causing death are indictable offences.

 

In Alberta, for a first impaired or refusal conviction, the minimum punishment is a fine of $1000 along with a one year driving prohibition. Subsequent offences will result in imprisonment. Additionally, the judge may sentence the person to imprisonment, even for a first offence. For a summary conviction, the imprisonment term is up to 18 months. For an indictable offence, the imprisonment term is up to 5 years.

 

IF I AM GIVEN A JAIL SENTENCE, DO I HAVE ANY OTHER OPTIONS?

If a jail term is given of 90 days or less, it may be possible to be served on an intermittent basis. This means serving the sentence on weekends or on another appropriate periodic basis during the week. In deciding whether or not to allow this, the judge will take into account the circumstances of the offender, including work, children, or school schedules.

 

WHAT IS A CURATIVE DISCHARGE?

A person who pleads guilty or is found guilty of impaired driving or driving “over 80" may be given a curative discharge, instead of being convicted. Curative discharges are very rare. They may be appropriate if the court is satisfied that a person has a serious alcohol or drug problem and there is a reasonable chance of overcoming these problems through treatment.

 

A person who is given a curative discharge will still receive the normal licence suspensions.

 

A curative discharge is not available for the offence of refusal.

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Licence Suspensions

There are three types of licence suspensions which are given in Alberta upon charge and/or conviction.

 

FEDERAL DRIVING SUSPENSIONS

When imposing a penalty for an impaired driving, "over 80", or refusal charge, the judge must impose a federal driving prohibition.  For a first offence, it will be between 1 and 3 years.  For a second conviction, the prohibition will be between 2 and 5 years.  For each conviction after the second conviction, a person's licence will be suspended for at least 3 years.  The suspension can be longer than 3 years if the impaired driver caused bodily injury or death to another person.

 

PROVINCIAL DRIVING SUSPENSIONS

In addition to the federal prohibition, there is also a provincial suspension.  A person found guilty of an impaired, "over 80", or refusal charge, will be temporarily disqualified from holding a driver's licence. For a first offence, disqualification is for 1 year.  If convicted of another impaired related charge within 10 years, the new provincial disqualification will be for 3 years. If found guilty of 2 offences within 10 years, provincial disqualification will be for a period of 5 years.

 

The provincial driving disqualification and the federal prohibition run concurrently. For example, if someone receives a federal prohibition of 1 year and a provincial disqualification for a period of 3 years, both will start immediately from the time the person is found guilty. In 1 year, the federal prohibition will end, but 2 years will still remain on the provincial disqualification.

 

AUTOMATIC LICENSE SUSPENSION WHEN CHARGED

The Traffic Safety Act allows the provincial government to automatically suspend a person's licence if the person blows over ".05" into the roadside screening device or refuses to blow.

 

The officer will require the accused to surrender his or her driver's licence immediately at the side of the road.

  • For a first offence, the automatic suspension is for 3 days.
  • For a second offence, 15 days.
  • Each offence thereafter, 30 days.

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The Ignition Interlock Program

WHAT IS THE IGNITION INTERLOCK PROGRAM?

The program allows people who have lost their driver's licence through an impaired driving conviction or an "over 80" conviction to regain conditional, and eventually full driving privileges upon completion of the program. Certain restrictions apply and specific eligibility criteria exist. The Alberta Transportation Safety Board administers the program.

 

WHEN IS THE IGNITION INTERLOCK PROGRAM MANDATORY?

The program is mandatory for all drivers convicted of an "impaired driving", "over 80", or "refusal" who wish to regain their driving privileges. As of July 1, 2012, the program is mandatory for 1 to 5 years, depending on whether the person is a repeat offender or not.

 

CAN I GET AN EXEMPTION FROM DOING THE MANDATORY IGNITION INTERLOCK PROGRAM?

It is very difficult to get an exemption from the program.

 

You may be granted an exemption if it is not feasible to comply with the program. A valid reason would be that it is not medically possible for you to complete the ignition interlock program and a doctor verifies that this is the case.

 

To apply for an exemption, you must send an exemption letter that includes your driver's licence number, full name, address, telephone number, date of birth, and if available your Motor Vehicle Identification Number (MVID). Exemptions will only be granted when you have completed all other reinstatement conditions other than the Ignition Interlock Program and road test.

 

HOW DOES THE PROGRAM WORK?

An alcohol-sensing device is attached to the ignition of a vehicle.  A person must blow into the device before starting his or her vehicle and/or while driving the vehicle. The person will be prevented from driving the vehicle if the device detects a pre-set level of alcohol on the driver’s breath. 

 

All program activity is recorded and monitored by the Transportation Safety Board. A driver who gets a “fail” or “warning” by the device, or who uses or handles the device inappropriately may have to appear before the Board. The Board may decide that the driver is not allowed to participate in the Ignition Interlock Program anymore, or that the driver needs to be enrolled in the program for a longer period of time.

 

The Board expects ZERO warns or fails while the applicant is on the Ignition Interlock Program.

 

CRITERIA FOR THE IGNITION INTERLOCK PROGRAM

  • The Ignition Interlock Program is for sections 253, 254 or 255 convictions. 
    • Persons convicted of impaired driving causing bodily harm or death are NOT eligible
  • The driver must be a resident of Alberta and be eligible for a Restricted Driver's Licence.
    • Even if the driver is not a resident, it may be possible for the driver to participate in the program, contact Driver Fitness and Monitoring at 780-427-8230
  • The driver must have already paid all overdue motor vehicle fines and served all other non-alcohol related suspensions (such as driving while a licence is suspended)
  • If the driver is a first-time offender, he or she must take the “Planning Ahead” course before applying for the Ignition Interlock Program
  • If the driver is a repeat offender, he or she must take the “Impact” course before applying

 

To be approved for exit from the program, the driver may not have any readings of “warning” or “fail” in the last 3 months of the program. After the suspension period ends, the individual must apply to have the Interlock device removed.

 

PROGRAM COSTS

The cost of the Ignition Interlock Program is:
  1. An installation fee of $145 and a removal fee of $50;
  2. A $95/month rental fee;
  3. Application fee of $63 and Registry Agent fee; and
  4. $275 for the "Planning Ahead" course or $850 for the "Impact" course

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Referral Numbers

For information on the Planning Ahead and Impact Courses see the AMA website:

             http://www.ama.ab.ca/community-and-ama/alberta-impaired-drivers-program

 

 

 

Alberta Transportation Safety Board (North

Office)

Main Floor, Twin Atria Building

4999 98 Avenue

Edmonton, AB T6B 2X3

Contact:

Ph: 780-427-7178

Fax: 780-422-9739

For more information about driving offences, licence suspension, hearings, and appeals.

 

Elizabeth Fry Society of Edmonton

10523 100 Avenue NW

Edmonton, AB T5J 0A8

Contact:

Toll free: 1-866-421-1175

Web: www.efryedmonton.ab.ca

The Elizabeth Fry Society of Edmonton is aimed providing at-risk women and girls with various programs and services. Programs include the Aboriginal Women's Program, Criminal Court Program, Employment Services Program, Financial Literacy Program, Legal Clinics, Imprisonment Programs, and youth programming. Services include smudging, laundry facilities, and drop-in workshops.

 

Lawyer Referral Service

 

Contact:

Toll free: 1-800-661-1095

When you call, you will speak to an operator and you will describe the nature of your problem to them. The operator will then provide you with the contact information for up to three lawyers who may be able to assist you. When contacting these referred lawyers, make sure to let them know that you were given their information by the Lawyer Referral Service. The first half hour of your conversation with a referred lawyer will be free and you can discuss your situation and explore options. Note: This free half hour is more for consultation and brief advice and is not intended for the lawyer to provide free work.  

 

Legal Aid Society of Alberta

Revillon Building

Suite 600 – 10320 102 Avenue

Edmonton, AB T5J 4A1

Contact:

Toll free: 1-866-845-3425

Youth Criminal Defence Office: 780-422-8383

Web: www.legalaid.ab.ca

The Legal Aid Society of Alberta functions to assist low-income Albertans with certain types of legal matters. Assistance is provided through information, referrals, advice, and/or representation, depending on what your matter is and which eligibility guidelines you meet.

 

Native Counselling Services of Alberta (NCSA)

10975 124 Street NW

Edmonton, AB T5M 0H9

Contact:

Ph: 780-451-4002

NCSA provides numerous programs working to support and strengthen Aboriginal individuals and families. These programs include support in court, assistance with child/family service matters, housing and support for at-risk youth, and Aboriginal healing lodges. They do not provide therapy or counselling.

 

Student Legal Services – Criminal Law Project

#203, 9924 106 Street NW

Edmonton, AB T5K 1C7

 

Contact:

Ph: 780-492-8244

Admin: 780-425-3356

Fax: 780-420-0065

The Criminal Law Project looks to assist adults who have been charged with an offence but are unable to afford a lawyer or qualify for Legal Aid Alberta. A law student will volunteer their time to provide free legal assistance where they can act as an agent for you while acting under the supervision of advising lawyers.                                                                                                        

 

 

 

 



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