Providing free legal information and representation to the low income community since 1969.
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.
Section 253(1)(a) of the Criminal Code defines the offence of "impaired driving". It states that "Everyone commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has 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".
Section 253(1)(b) of the Criminal Code defines the offence of "Over 80". It makes it 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%).
Simply put, section 253 creates two offences. This section makes it a criminal offence to drive a motor vehicle, or help someone drive a motor vehicle, while your ability to do so is “impaired” or your blood alcohol level is “over 80".
Section 254(5) of the Criminal Code makes it an offence to refuse to blow or give a blood sample when there is a lawful demand for you to do so.
WHAT IS MEANT BY "IMPAIRED"?
You can be impaired by using either alcohol or drugs. “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 and become a danger to the public.
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. But, even if the person is not in the driver’s seat (ex: sitting in the passenger’s seat), if it is proven that he or she was using the motor vehicle in such a way that it may be set in motion, that person may still be found to be in care and control. So, there is a danger of being found guilty even if a person is just sleeping in a motor vehicle. It may even be possible to find someone in care and control of a motor vehicle who is simply near the motor vehicle and has the ability to set it into motion.
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 while driving is “over 80", the officer can arrest you immediately. An officer may have reasonable and probable grounds by taking into consideration any 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 an “Alco-Sur” or roadside screening device test. This suspicion may come from any physical signs, an irregular driving pattern, or from any statements made.
A roadside screening device (Alco-Sur) 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 hold a person further and demand that they take a breathalyser test.
A person who refuses a roadside screening device test may be charged with section 254(5), “refusal to blow”. Or a refusal to comply with an approved roadside screening device demand can be used by a police officer as part of the reasonable and probable grounds to make a breath demand.
WHAT IS THE BREATHALYSER TEST?
The breathalyser is a machine which measures someone’s actual 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, the officer may demand that the person go with him to provide breath samples.
The demand must be made right away or as soon as practicable once an officer has reasonable and probable grounds for arrest. These breath samples must be taken as soon as it is practicable after the demand is made. 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. The certificate will include the results of at least two readings and the times when each was taken. 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 will be accepted at trial as the actual blood alcohol level 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.
However, you can be charged with failure to comply with a demand for blood samples 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.
There is no all-inclusive definition of reasonable excuse. Generally, a “reasonable excuse” is anything which makes the demand either extremely difficult to agree to or the person’s health would be substantially at risk if a sample was given. Generally, it is not a valid excuse if it is impossible for someone to understand the demand because he or she is too drunk.
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"?
Yes. 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. This means that a person cannot be punished for both. The person’s criminal record will not reflect the charge for which a judicial stay has been entered.
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".
WHEN DOES A PERSON HAVE THE RIGHT TO CONTACT A LAWYER?
Generally, a person does not have the right to contact a lawyer before taking the roadside screening device. The evidence gathered before the Charter right to contact a lawyer, such as screening device test results, roadside coordination tests or admitting you consumed alcohol or drugs, are only useable to provide grounds for the breathalyser demand and are not admissible at trial to prove impairment or “over 80”. A person does have the right to speak to a lawyer before taking the breathalyser. The right to contact a lawyer before taking this test is the same whether the person is at a roadside mobile testing station or at the police station.
WHAT MUST THE POLICE DO TO ASSIST A PERSON TO CONTACT A LAWYER?
When they arrest or detain someone, the police must tell the person the reason for the arrest or detention. The police must also do more than simply mention the right to contact a lawyer. They should also provide a person with information about Legal Aid and duty counsel. The information must be complete and the police must explain to the person how to reach services which provide free, immediate, legal advice. This means that even if a person thinks that he or she cannot afford to hire a lawyer, there is still a right to speak to a lawyer for free before taking any tests.
The police must also give a person a reasonable chance and a reasonable amount of time to contact a lawyer. Normally, this means that the police will place 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 a person's right to contact a lawyer has been denied, the evidence of the breath of blood samples may be excluded 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.
Impaired drivingand “over 80” are “hybrid offences”. This means that the Crown may proceed by either summary conviction or by indictment. Before a person pleads guilty or not guilty the prosecutor will let the accused, and the court know whether the Crown is going ahead summarily or by indictment. If the Crown chooses indictment, they will generally be seeking a more serious sentence. In deciding how to proceed, the Crown will consider any past related record the accused may have as well as the circumstances of the offence. Generally, these factors will also affect the seriousness of the sentence. Impaired driving causing bodily harm or impaired driving causing death are indictable offences. You will be punished more severely for these offences.
For a first impaired or refusal conviction, the Crown will generally proceed summarily. This means that if someone is either convicted or pleads guilty the sentence will carry with it at least the minimum fine of $1000, up to a maximum of $5000, along with a one year driving prohibition. For summary convictions, the Judge may also sentence the person to imprisonment for a term of up to 18 months.
If someone has already been convicted of an impaired, "over 80", or refusal charge, and are again charged with one of these offences, the Crown may put forward a certificate to seek greater punishment. If the Crown is going to do this, the person must be served (given a notice) of this intention before entering a plea. The notice has to be in writing and is often given to the accused once he or she is released from custody along with a Certificate of Analysis. As a general rule, if someone has one previous conviction within the past five years, or two within the last ten years, the Crown will proceed as though the offence is a second or subsequent offence. However, it should be noted that while this is a general rule of thumb, the Crown can decide whether or not they want to enter the notice into evidence.
If the Crown chooses to enter this notice at the sentencing stage the minimum sentence is increased. For a second conviction, a person will receive imprisonment for a period not less than 30 days and for a third, the sentence is increased to not less than 120 days. The Judge can impose jail time without such notice, but in the case where no notice is given, the jail time is not mandatory.
Each time someone re-offends, the Crown will likely seek a more serious penalty.
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 served on an intermittent basis. This means that someone can ask that the imprisonment be served on weekends or any other appropriate periodic basis during the week. In deciding whether or not to allow this, the judge will often take into account the circumstances of the offender, such as work, children or school schedule.
WHAT IS A CURATIVE DISCHARGE?
A person who pleads guilty or is found guilty of impaired driving or driving “over 80" may, instead of being convicted, be given a curative discharge. Curative discharges are very rare. They may be considered appropriate if a 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 be placed on probation with the strict condition that a treatment program be taken. There will likely be a condition that the person not drink any alcohol or take non-prescribed drugs as well. If the person completes the treatment program successfully, the conviction is not registered on the criminal record.
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.
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 offence, between 2 and 5 years. For each offence 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 either bodily injury or death occurred to another person as a result of the impaired driving.
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 also be disqualified from holding a driver's licence under s.83 of the Alberta Traffic Safety Act. For a first offence, disqualification is for 1 year. If convicted of another impaired related charge within 10 years, the 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.
AUTOMATIC LICENSE SUSPENSION
The Traffic Safety Act allows the provincial government to automatically suspend an accused's licence for 3 months if "charged" with driving "over 80", impaired driving, or refusing to blow or provide a blood sample.
If the charge of “over 80”, or refusal is accompanied by impaired driving causing death or bodily harm, the automatic suspension is raised to 6 months.
These automatic suspensions come into effect either immediately or after the 21 day temporary licence issued expires. This temporary licence is issued in place of the accused's original licence which will be taken and destroyed by police.
If found not guilty of the offence before the 3 months suspension expires, a person can apply to the Driver Control Board to have their licence re-instated.
The provincial driving disqualification and the federal prohibition run concurrently. This means that they start and run at the same time. They are not added together. 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 they are found guilty. In 1 year the federal prohibition will end, but 2 years will still remain on the provincial disqualification.
WHAT IS THE IGNITION INTERLOCK PROGRAM?
The Ignition Interlock Program is administered by the Alberta Transportation Safety Board.
The program allows people who have lost their driver's licence through an impaired driving conviction or an "over 80" conviction to gain conditional driving privileges before the end of their licence suspension. Certain restrictions apply and there are specific eligibility criteria.
WHEN IS THE IGNITION INTERLOCK PROGRAM MANDATORY?
The program is mandatory for:
- all drivers who have more than one alcohol related Criminal Code conviction in the past 10 years
- first offences when the driver is convicted of driving with a blood alcohol level of 160 milligrams percent (mg%) or greater on both samples (your blood alcohol level can be found on your Certificate of Analysis), or
- drivers who refused to provide a breath/blood sample.
CAN I GET AN EXEMPTION FROM DOING THE MANDATORY IGNITION INTERLOCK PROGRAM?
If it is your first offence and the breath or blood sample you provided was less than 160 mg%, you may apply to the Board for an exemption from the mandatory program (ask not to have to do the interlock program). In order to be granted this 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).
You also must send a copy of your Certificate of Analysis which shows that you blew under 160mg% on both readings, to the Alberta Transportation Safety Board.
If your request is approved, a revised Notice of Suspension will be mailed to you. The Mandatory Ignition Interlock reinstatement condition will no longer apply to your driver’s licence.
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 preset level of alcohol on the driver’s breath. All program activity is recorded and monitored. The device is monitored by the Transportation Safety Board. A driver who are gets a “fails” or “warnings” by the device, or who uses or handles the device inappropriately may have to appear before the Board and have their participation in the program reviewed. He or she may not be allowed to participate in the Ignition Interlock Program anymore or the driver may be have to do 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 or 254 convictions. A driver who is convicted of impaired driving causing bodily harm or death is NOT eligible for this program.
- If the driver wants to be eligible to apply for the Ignition Interlock Program, he or she should ask the Judge to make this recommendation when being sentenced and the driving prohibition is imposed. If the Court does not give the driver permission to participate in the Ignition Interlock Program, the Board will use the minimum terms quoted in the Criminal Code.
- The driver must be a resident of Alberta and be eligible for a Restricted Operator’s Licence.
- If the driver is a first time offender, he or she must take the “Planning Ahead” course.
- If the driver is a repeat offender, he or she must take the “Impact” course and a copy of the Summary Report received at the Impact Driver Program must be attached to the application.
- The driver must have served all other non-alcohol related suspensions such as driving while a licence is suspended, and have paid all overdue motor vehicle fines.
- The driver must participate in the program for a minimum of 6 months.
A person must apply for the Ignition Interlock Program and must pay both the installation costs and a monthly charge to rent this device.
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.
- an installation fee of $150 and a removal fee of $50;
- a $150/month rental fee;
- application fee of $63 and Registry Agent fee;
- $250 for the "Planning Ahead" course or $800 for the "Impact" course;
- the fee for a restricted operator's licence and road test.
Some of the agencies which may be able to provide you with legal guidance are:
|Lawyer Referral Service||1-800-661-1095|
|Native Counselling Services of Alberta||780 423-2141|
|Student Legal Services (University)||780 492-2226|
|SLS Corona Criminal Law Office (Downtown)||780 425-3356|
|Legal Aid Society of Alberta||780 427-7575|
|Alberta Transportation Safety Board||780 427-7178|
|Elizabeth Fry Society of Edmonton||780 421-1175|
|Court Office||780 422-4775|
For information on the Planning Ahead and Impact Courses see the AMA website: