Ontario’s Drinking and Driving Laws Often Misunderstood; Here’s what you should know before you drink and drive | Criminal Defence Articles by Tushar K. Pain

Most people don’t know they can be convicted of drinking and driving even if they are not driving a vehicle.  That’s just one indication of what you’re up against if you drink and drive in Ontario.

The offence of drinking and driving is defined in the Criminal Code to occur in two situations:  (1) where your ability to operate a motor vehicle is impaired, or (2) where the concentration of alcohol in your blood exceeds 80 milligrams of alcohol per 100 millilitres of blood.

The Criminal Code defines the offences in relation to having ‘care and control’ of a motor vehicle, which is a much broader concept than driving alone.  The Criminal Code goes so far as to deem a person to be in care and control of a vehicle if they are found to be occupying the driver’s seat.

This means for example, you could be convicted of drinking and driving if a police officer found you sleeping in the driver’s seat of a parked car, even if you had not driven the vehicle or even placed the vehicle into the drive gear.

Either of the two offences — driving while impaired or driving with a blood alcohol level of over 80 milligrams — is a crime, even if the other condition is not met.  It is conceivable that a person with a blood alcohol level under 80 milligrams could be impaired.  And, it is conceivable that a person whose blood alcohol level is over 80 milligrams might not be impaired.

Practically speaking, those who get charged are often charged with both.  If the person charged is convicted, he or she will be convicted of one or the other.  This is due to a legal principle that disallows a conviction for both offences when they arise out of the same incident.

Many people don’t realize they can be convicted of drinking and driving for refusing or failing to provide a suitable breath sample.  This arises from the legal duty to provide a sample of breath at the request of a police officer into an approved machine.  Many drivers are not aware that in most instances, it is a criminal offence not to provide a sample of breath when requested to do so by the police.

Drivers often have the notion that they can “beat the charge” by not blowing into the machine, thus avoiding any reading of alcohol.  What they don’t know is that a conviction for either failing or refusing to provide a breath sample carries the exact same penalties and consequences as a conviction for driving while impaired or driving “over 80”.  The charge of failing or refusing to provide a breath sample is much more difficult to defend at trial than one of the other two charges.

If convicted, the penalties for all three offences are the same.  You are saddled with a criminal record.  You are prohibited from driving for a minimum of one year.  And, you face a fine of not less than $600.00.  If it’s your second time around, you’re looking at jail.  And, if someone is hurt or killed as a result of your drinking and driving, the penalties go up.

The Highway Traffic Act (a provincial statute that regulates matters related to highway traffic in Ontario) also mandates its own suspensions and other such inconveniences that can be more onerous than the sanctions under the Criminal Code.

Under the Ontario Highway Traffic Act, upon even being charged with one of these offences, your licence is automatically suspended for 90 days.  This is before you have been determined to be guilty of anything.  If you’re convicted, you receive an additional suspension of one year.  Plus, you do not automatically get your licence back at the end of that year.  Instead, you have to complete a program called ‘Back on Track, Ontario’s Remedial Measures Program’.  This program currently costs you $475 plus G.S.T. and can take ten months to complete.  What’s more, you pay an additional $100 fee to get your licence reinstated.

The conviction stays on your driving record for at least ten years and makes it extremely difficult to get car insurance.  Your premiums skyrocket, if you can find a company willing to insure you.

Over a holiday weekend, drivers can easily get caught up in an investigation for drinking and driving.  Most people have experienced being pulled over by police officers working a RIDE (Reduce Impaired Driving Everywhere) program, a provincial spot-check enforcement campaign started in 1977.

When asked if you have had anything to drink, if you answer no, you are on your way.  But if a police officer has a reasonable suspicion that you’ve had even one drink, you’re probably in for an unpleasant experience.

If you convince the officer that you’ve had only one drink, he might release you.  But if the officer decides to investigate further, he may ask you to get into the back seat of a police vehicle.  There, you provide a breath sample into a roadside screening device.  If you fail, you’re off to the police station to provide further breath samples, a process that can consume many hours.

Motorists should plan ahead.  If you expect to drink, make alternate travel arrangements.  If you’re driving and then decide to drink, leave your car where it is and take a taxi or the bus.

The best way to avoid serious and costly problems is simple: either don’t drink – or don’t drive.