How a Criminal Lawyer Can Help If You Have a Drinking & Driving Charge

Drinking and driving is not a matter that the law takes lightly, either at the federal or provincial level. Provided to you by Elliot Starer Law in Thornhill, an account of how the Canadian Criminal Code and Ontario’s Highway Traffic Act treat drinking and driving is here below.


Federal Law 


Impaired driving or driving with a blood alcohol content (BAC) above 0.08 are offences under the Criminal Code of Canada that can result in fines, a criminal record, and in the case of serious or repeat offences, prison time. The offence of impaired driving is in some ways broader than intoxication by alcohol, and can include intoxication due to drug use. The offence may also be used where a person has not submitted to a blood test, but where there is other clear evidence of intoxication. The “above 0.08” offence is typically used where a breathalyzer test and a blood test have indicated that a driver’s BAC was above 0.08 while they were driving, even if there are not necessarily clear signs of impairment.

Aside from the implications of the Canadian Criminal Code, which is federal legislation, provinces in Canada have jurisdiction to create offences and impose penalties for drinking and driving. In Ontario, these laws are created under Ontario’s Highway Traffic Act, as detailed below.

Provincial Law - The Highway Traffic Act

The following is a detailed account of the possible consequences for drinking and driving, pursuant to the Highway Traffic Act:

If your BAC is found to be within the “warn range” (between 0.05 and 0.08), or failure of a standard test for sobriety, the following consequences are possible, pursuant to the provincial regulations:
  • 3-day, unappealable, roadside license suspension 
  • $198 administrative monetary penalty
Note that the above penalties apply where a person’s BAC is actually below the level required to constitute an offence under the Criminal Code.

If your BAC is above 0.08, or you are found to be impaired by way of an expert drug recognition evaluation, the following consequences may apply, under the provincial regulations:
  • 90-day license suspension
  • $198 administrative monetary penalty
  • 7 day vehicle impoundment
The above noted “expert drug recognition evaluation” must be conducted by a professional accredited by the International Association of chiefs of Police. More information on these evaluations, and what is required, can be found here on the RCMP website.

For novice drivers or those under the age of 21, having a BAC anywhere above 0.00 (i.e., the driver has consumed any alcohol in the past several hours) can also carry consequences:
  • 24-hour license suspension
  • If convicted of impaired driving, your driver's license will be suspended again for at least 30 days and you will receive a $60-$500 fine; in some cases, drivers may have their licenses revoked and may be forced to redo their driving tests.
Licenses may be suspended more than the 90 days noted above in repeat offence cases. Where a person’s license is suspended twice within a 10-year period for any of the above noted reasons, the person may be required to install an ignition interlock in his or her vehicle for a period of time following license suspension. If your license is suspended 3 times within a 10-year period, you may be subjected to a mandatory medical evaluation to assess for substance abuse, in which case your license could be suspended indefinitely until it is proven that you are medically fit to drive.

It should be noted that being convicted of a provincial offence in relation to drinking and driving will often mar your driving record and cause your insurance rates to increase dramatically. To start with, demerit points will remain with you for two years from the offence date. Traffic offence convictions typically remain on your driving record for three years from the date of conviction. Any suspensions stay on your record for six years.

How Can a Criminal Lawyer Help?

If you have been charged under the Criminal Code, the Highway Traffic Act, or both, an experienced criminal lawyer may be able to help. They may be able to make a case that there is insufficient evidence to support conviction, or that your rights under the Canadian Charter of Rights and Freedoms were violated in the course of your arrest or the investigation relating to the charges.

A criminal defense lawyer will also give you guidance on your options with respect to your plea and assess if it is possible to have the charges dropped. Your lawyer can also help to determine whether a plea bargain is possible and if necessary take your case to trial. Even if you are found guilty at trial or if you and your lawyer decide it is in your best interests to plead guilty, your lawyer can help you argue for less severe penalties.

For example, in R. v. Morris, 2010 ONCJ 138 (CanLII), the accused, with the help of his lawyer, was able to secure an acquittal on the charges of both impaired driving and driving with a BAC above 0.08. At trial, the judge accepted the accused’s arguments that a breath sample was not taken in due course after he was detained, and that there were insufficient indicia of impairment to prove, beyond a reasonable doubt, that the accused was impaired by use of drugs or alcohol.

In R. v. Judson, 2017 ONCJ 439 (CanLII), the accused was charged with both impaired driving and driving with a BAC above 0.08, in addition to charges under the Highway Traffic Act. However, her counsel argued at trial that the accused was improperly strip searched in the course of her arrest without reasonable and probable grounds, in violation of her Charter rights. The court found that violation of her rights was so extreme that it was necessary to stay all charges against her in order to preserve the integrity of the justice system.

Contact Elliot Starer Law, Criminal Lawyer Serving Thornhill & Vaughan

Consider contacting Elliot Starer, criminal lawyer in Thornhill, if you have been charged with impaired driving, driving with a BAC over 0.08, and/or related offences under the Highway Traffic Act. At Elliot Starer Law, we can help you to explore your options. Call today at 905-764-0074.
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