Impaired Driving Offences and how to defend them
Impaired driving is the act of operating or having care or control of a motor vehicle while under the influence of alcohol and/or drugs to the degree that mental and motor skills are impaired. These are considered serious criminal Offences, and is punishable under multiple offences in the Criminal Code of Canada, and can also result in various types of driver’s license suspensions. There are a number of powers given to police officers to assist in the enforcement of the offences, and there are a number of presumptions that assist in the prosecution of the offences.
Typically these offences will be found in section 253 of the criminal code of Canada. In 2008 the Government of Canada made amendments to the law on drinking and driving. The Tackling Violent Crime Act came into force on July 2, 2008. The changes included adding new evidentiary restrictions on defendants trying to raise “evidence to the contrary” regarding the presumption of a person’s blood alcohol concentration, created mandatory standard field sobriety tests that can be requested by a police officer, created additional means to allow police officers to test for the possible presence of drugs in a driver’s body, increased the minimum sentences to their current level ($1000 fine for the first offence, 30 days in jail for the second offence, and 120 days in jail for the third offence), and created new offences for “over 80” causing death or bodily harm and refusing to provide a sample where operation caused death or bodily harm.
How is testing done for drinking and driving
If a police officer has reasonable grounds that a person has committed an offence under section 253 within the past three hours due to alcohol, they can demand that a person provide suitable breath samples into an approved instrument. The results of those samples may be introduced as evidence at a later trial. If it is later determined that the officer did not have reasonable grounds, then the taking of the breath samples violated the protection against unreasonable searches and seizures under section 8 of the Canadian Charter of Rights and Freedoms and the person can apply to have them excluded as evidence under section 24(2) of the Charter. Police officers can obtain reasonable grounds from observations they make and information they receive, including the results of the other demands listed below.
These breath samples are typically taken at a police station by a qualified technician, after a person has been arrested.
Blood sample testing
If a person is unable to give breath samples (usually due to injuries suffered from a traffic collision), a police officer can make a demand for blood samples, under the direction of a medical doctor, and performed by the same doctor or a nurse.
An approved screening device
If a police officer has a reasonable suspicion that a person has alcohol in his or her body, and that he or she has been operating or has had care or control of a vehicle within the past three hours, the police officer can demand that person provide a suitable sample into an approved screening device. These devices are usually calibrated to display fail if a person has a BAC above 0.1 percent, warn or caution if a person has a BAC between 0.05 and 0.1 percent, and a numerical value if the person has a BAC below 0.05 percent.
These breath samples are typically taken at the roadside by an investigating police officer. Typical observations supporting a reasonable suspicion is if a driver has an odor of an alcoholic beverage on their breath, or if they admit they had a drink.
Field sobriety tests
If a police officer has a reasonable suspicion that a person has alcohol or drugs in their body, and that they have been operating or have had care or control of a vehicle within the past three hours, they can demand that person perform physical coordination tests, in order to allow the officer to determine whether to make an approved instrument demand, a blood demand, or a drug evaluation demand.
If a police officer has reasonable grounds that a person has committed an offence under section 253 within the past two hours due to drugs or a combination of drugs and alcohol, they can demand that the person submit to an evaluation by an evaluating officer to determine if the person is impaired by drugs or a combination of drugs and alcohol. If the evaluating officer has reasonable grounds that the person is impaired by alcohol, they can make an approved instrument demand. If the evaluating officer has reasonable grounds that the person is impaired by drugs or a combination of drugs and alcohol, they can make a demand for blood or urine samples. Fatigue toxins and effects due to illness have been held to be drugs for the purposes of the statute.
There are now new criminal code driving offences for drugs. This has created three new offences of prohibited blood drug concentrations. There is a straight summary conviction offence and two hybrid offences. One hybrid offence applies to drugs alone and the other applies to drugs and alcohol combined.
What are the new prohibited blood drug concentrations and how are they set?
The prohibited blood drug concentrations are set by regulation. The regulation came into force on June 26, 2018. For THC, the prohibited levels are:
at or over 2 ng (nanograms) but under 5 ng of THC per milliliter (ml) of blood for the straight summary conviction offence
at or over 5 ng of THC per ml of blood for the drug-alone hybrid offence
at or over 2.5 ng of THC per ml of blood combined with 50 mg of alcohol per 100 ml of blood for the drugs-with-alcohol hybrid offence
Levels for eight other impairing drugs are set at “any detectable level” for the hybrid offence. These include: Cocaine, LSD, 6-MAM (a metabolite of heroin), Ketamine, Phencyclidine (PCP), Psilocybin, Psilocin (magic mushrooms), and Methamphetamine. The level for Gamma hydroxybutyrate (GHB) is set at 5 mg/L, as the body can naturally produce low levels of this drug.
What are the penalties for these new offences?
The penalty for the summary conviction offence is a maximum fine of $1,000.
The penalties for the two hybrid offences are the same as for alcohol-impaired driving. These include mandatory minimum penalties of $1,000 fine for a first offence, 30 days imprisonment for a second offence and 120 days imprisonment for a third offence.
What are the tools and techniques available to law enforcement in drug-impaired driving investigations?
Since 2008, specially trained law enforcement have been authorized to use Standardized Field Sobriety Test (SFST) and a Drug Recognition Evaluations (DRE). SFST tests are routinely conducted at the roadside to provide preliminary indications of impairment. DRE evaluations are conducted at the police station, can include a bodily fluid sample, and can provide further evidence to support a drug-impaired driving charge.
As of June 2018, as a result of Bill C-46, police can now also demand a sample of oral fluid on approved drug screening equipment at the roadside. A drug screener has now been approved for use as an additional tool for law enforcement.
What is an oral fluid drug screener?
In order to be approved for use in Canada, an oral fluid drug screener must be comprised of both: an oral fluid collection kit and a reader. It can detect the presence of some drugs in oral fluid, including THC, the main impairing component in cannabis. These devices are fast, non-invasive, and accurate. A positive result on an oral fluid drug screener is strongly suggestive of recent cannabis and recent cocaine use. A positive result on an oral fluid drug screener may provide enough information to move the investigation forward either by making a demand for a drug recognition evaluation or a blood sample.
When can law enforcement demand an oral fluid sample from a driver?
Before the police can demand an oral fluid sample on a drug screener, they must reasonably suspect there is a drug in the driver’s body. Courts have indicated that a reasonable suspicion is based on objectively discernable facts, such as red eyes, muscle tremors, agitation, or speech patterns. Police officers are trained to identify the signs and symptoms of recent drug use.
What happens if a driver tests positive on an oral fluid drug screener?
A positive result on an oral fluid drug screener provides information to the police that helps them develop reasonable grounds to believe that an impaired driving offence has been committed, including the new blood drug concentration offences. A positive result on an oral fluid drug screener may provide enough information to move the investigation forward either by making a demand for a drug recognition evaluation or a blood sample.
Will an oral fluid screening test be used in every case?
There is no requirement that an oral fluid screening demand be made in every case. It is an additional tool that can be used by police to help them detect drug-impaired drivers.
Can oral fluid drug screeners detect all impairing drugs?
No. There are thousands of impairing drugs, and not all can be detected by oral fluid drug screeners.
Police have other tools and techniques at their disposal. Since 2008, specially-trained law enforcement have been authorized to use both the Standardized Field Sobriety Tests (SFST) and a Drug Recognition Evaluations (DRE). SFST tests are conducted at the roadside to provide preliminary indications of impairment. DRE evaluations are conducted at the police station, can include a bodily fluid sample, and can provide further evidence to support a drug-impaired driving charge.
Are blood samples required in every case?
Blood samples are required to prove the new blood drug concentration offences.
How does drug screening equipment get approved for use in Canada?
Similar to the long-established process for approving alcohol breath testing equipment, the process for approving drug screening equipment requires drug screeners to be evaluated by the Drugs and Driving Committee (DDC) of the Canadian Society of Forensic Science (CSFS).
Drug screeners are evaluated by the DDC against their standards and evaluation procedures. If the DDC determines that a drug screener meets its evaluation standards, it will be recommended to the Attorney General of Canada for consideration and approval. Details of the evaluations undertaken by the DDC are confidential to protect the commercial and proprietary interests of the manufacturers. On August 22, 2018, the Attorney General of Canada approved the Dräger DrugTest® 5000 STK-CA (collection kit) to be used with the Dräger DrugTest® 5000 (reader), as the first oral fluid drug screener.
Some law enforcement agencies have stated publicly that they will not purchase the drug screener that was recently approved by the Attorney General of Canada. What is your response to this?
On August 22, 2018, the Attorney General of Canada approved the Dräger DrugTest® 5000 STK-CA (collection kit) to be used with the Dräger DrugTest® 5000 (reader), based on the scientific recommendation of the DDC and following a 30-day public comment period. Drug screening equipment is an additional tool available for police to use to detect and investigate drug-impaired driving, including the new blood drug concentration offences. Police agencies are not obligated to purchase or use oral fluid drug screeners and can continue to rely on other tools and techniques such as SFST and DRE evaluations. If the DDC recommends other drug screeners to the Attorney General of Canada in the future, she will consider them for approval at that time.
What technological alternatives are available to oral fluid screening equipment?
No other technology for drug screening has yet advanced to the level of scientific acceptance that oral fluid drug screening technology has achieved.
How were the blood drug concentration levels determined for each drug?
The prohibited blood drug concentration levels, including those for THC, are based, in part, on the final report of the DDC. The prohibited levels also take into account the approach taken in other jurisdictions, including jurisdictions where cannabis has been legalized.
The levels were selected based on strong and indisputable evidence that cannabis is an impairing drug. The straight summary conviction offence (2 ng of THC) is based on a precautionary approach taking into account the best available scientific evidence related to THC. The hybrid offence (5 ng of THC) is more closely linked with impairment as it can be associated with recent use. Finally, the hybrid combination offence is based on evidence that THC in combination with alcohol is more impairing than either of the two alone.
How much cannabis can someone consume before it is unsafe to drive?
Unlike alcohol, the existing scientific evidence does not yet provide general guidance to drivers about how much cannabis can be consumed before it is unsafe to drive or how long a driver should wait to drive after consuming cannabis. However, we know that mixing driving with cannabis, or any other impairing drug, is not safe and poses a danger on Canadian roads. The law reflects this precautionary approach.
How would the new law and criminal offences affect individuals who have a medical authorization for cannabis?
The law applies to all drivers, including those with a medical authorization for cannabis. The new law does not include a medical exemption; this is consistent with the Criminal Code’s long-standing drug-impaired driving offence which has never exempted drivers who drive impaired by prescription drugs, for example.
How does the approach in the new law compare with other jurisdictions?
Other jurisdictions have set offence levels for impairing drugs, including cannabis. Colorado and Washington have set a 5 ng/ml of blood level for THC. The United Kingdom has set a 2 ng/ml of blood level for THC.
The three newly created offences for having a prohibited concentration of drugs in the blood within two hours of driving include specific (per se) levels for THC at:
- for the summary conviction offence for 2 ng but less than 5 ng of THC per ml of blood
- for the hybrid offence for 5 ng or more of THC per ml of blood
- for the hybrid offence for a combination of 50 mg of alcohol per 100 ml blood + 2.5 ng or more of THC per ml of blood
- Refuse to comply with a police officer demand
If any of the above demands are lawfully made, it is a criminal offence to fail or refuse to comply with them, unless the person can show they had a reasonable excuse. The penalties are identical with the penalties for other drinking and driving offences (which may result in doubling the minimum sentence).
Evidence of a Blood alcohol level
When a person gives a breath sample into an approved instrument by a qualified technician, a determination still needs to be made of what the person’s BAC was at the time of the offence.
That requires evidence of two things:
- The person’s BAC (blood alcohol level)at the time of giving the breath samples, and
- Based on the person’s BAC at the time of giving the breath samples, the person’s BAC at the time of the offence.
To work out the person’s BAC at the time of giving the breath samples, the prosecutor can rely on a Certificate of a Qualified Technician, which states what the results were of the analysis of the breath samples, and is evidence of its contents. This is commonly referred to as the presumption of accuracy. It is still open for the defence to call evidence showing why the results are not accurate, leaving it for the court to weigh the evidence.
If there is no Certificate, or the Certificate is flawed, the prosecutor can always call the qualified technician to give evidence about the accuracy of the results. The prosecutor may still call the qualified technician if there is a Certificate in order to counter the defence’s evidence.
To work out the person’s BAC at the time of the offence, the prosecutor generally needs to show the following:
- The breath samples were taken as soon as practicable,
- The first breath sample was taken within two hours of the offence, and
- A second breath sample was taken 15 minutes or more after the first sample.
If the three criteria are met, then the lower of the two results is presumed to be the person’s BAC at the time of the offence. This is commonly referred to as the presumption of identity.
The presumption can be rebutted two ways, depending on whether the defence is challenging the accuracy of the results. If the defence is challenging the accuracy of the results, they need call evidence that shows:
1- That the approved instrument was malfunctioning or not being operated properly,
2- That the malfunction or improper operation resulted in a reading of a BAC in excess of 0.08 percent, and
3- That the person’s BAC would not have been in excess of 0.08 at the time of the offence.
The last criteria is typically met by calling reliable evidence of how much the person had to drink prior to the offence, and expert evidence of what their BAC would have been at the time of the offence as a result of the drinking evidence.
If defence is not challenging the accuracy of the results, they only need to call evidence on the last criteria, and have the expert give evidence why it would not be inconsistent with the breath sample readings. (This is typically called the bolus drinking scenario.)
If the prosecutor is unable to rely on the presumption of identity (usually because the first reading was taken outside of the two hours), they can still “read-back” the readings by calling their own expert evidence.
A person convicted for any drinking and driving offence (which includes a refuse to comply offence) faces an automatic Canada-wide driving prohibition, and either a fine or jail sentence and the possibility of probation.
The minimum sentences are:
- For a first offence, a $1000 fine and a 12-month driving prohibition,
- For a second offence, 30 days of jail and a 24-month driving prohibition, and
- For a third or subsequent offence, 120 days of jail and a 36-month driving prohibition.
Drinking and driving offences are prior offences for refuse to comply offences, and vice versa.
1- If no one is killed or hurt, and the prosecutor is proceeding by summary conviction, the maximum sentence is 18 months of jail. If no one is killed or hurt, and the prosecutor is proceeding by indictment, the maximum sentence is 5 years of jail.
2- If another person suffers bodily harm because of the offence, the maximum sentence is 10 years in jail.
If another person is killed because of the offence, the maximum sentence is a life sentence.
If a person is convicted of both impaired operation/care or control and operation/care or control with a BAC in excess of 0.08 percent, the defendant can only be sentenced for one of the offences (the prosecutor chooses which one). The same does not apply if a person is also convicted of a refuse to comply offence.
The province is allowed to set up special ignition interlock device programs specifically to limit criminal driving prohibitions. In the interlock program if a person is enrolled in one, then they can drive during their prohibition period with an interlock device, beginning as follows:
a- For a first offence, 3 months after the day of sentence,
b- For a second offence, 6 months after the day of sentence, and
c- For a third offence or subsequent offence, 12 months after the day of sentence.
Driving otherwise while on a driving prohibition is a criminal offence.
There are Two types of drivers licences suspension
The driving Prohibition
Typically after an impaired driving offence is committed, the accused will be subject to both a prohibition imposed under federal law (criminal law) and a driver’s licence suspension under provincial law. It is important to note that while Parliament may prohibit an accused from driving, in the absence of provincial legislation, this does not affect the validity of the driver’s licence of the accused. Nonetheless the accused may be charged with drive while prohibited under criminal law despite possessing a valid driver’s licence.
The driver’s licence suspension
Often the provincial suspensions, they are more severe than the criminal prohibition. For instance many jurisdictions require the accused to complete a remedial program and participate in the ignition interlock program, failing which will result in an indefinite suspension until the conditions are met. Also an accused may be suspended from driving for medical reasons if a physician reports that the accused has a serious alcohol problem likely to result in an unacceptable risk to the public should the accused operate a motor vehicle.
The Criminal Code of Canada provides that an accused may be prosecuted for either driving while prohibited or driving while disqualified. The former refers to driving in contravention of a criminal court order of prohibition while the latter refers to driving while suspended under provincial legislation relating to a suspension for an impaired driving offence.
In the case of a reading not high enough to fail
Length: 24 hours for the first suspension, 24 hours & 15 days for the second suspension, 24 hours & 90 days for the third or subsequent suspension; Reason: BAC over 0.04 percent.
Committing an offence
This means that you have been arrested and charged but not yet convicted. In the province of Saskatchewan recent changes enacted July 1, 2014 your licence is suspended the day you are charged and remains suspended until the time the charges are disposed of in court either by a conviction, guilty plea or acquittal. If you compare this with the other provinces;
Alberta – 90 days generally; 6 months if bodily harm or death is caused
British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island, Quebec, Saskatchewan, Northwest Territories, Nunavut, Yukon – 90 days.
If you are Found Guilty of an offence
Usually the drivers licence suspension after a criminal conviction are as follows;
1 year for the first offence, 3 years for the second offence, 5 years for the third or subsequent offence.