There is actually no such offence as “drinking and driving”; there are offences though that fall under this umbrella. These include: Impaired Driving, Over 80, and Refuse to Provide Breath Sample. These, and other offences, are listed in the Criminal Code of Canada: http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html. Further relevant provisions can be found in Ontario Highway Traffic Act : http://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html
253(1) Every one 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 the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,
(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
253(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(a) includes impairment by a combination of alcohol and a drug.
254(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section (applying to providing breath samples/performing tests).
255(1) Every one who commits an offence under section 253 or 254 is guilty of an indictable offence or an offence punishable on summary conviction and is liable,
(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,
for the first offence, to a fine of not less than $1000,
for a second offence, to imprisonment for not less than 30 days, and
for each subsequent offence, to imprisonment for not less than 120 days
(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18 months
Using the offence of “Impaired Driving” as an example, the Crown must prove that (a) the defendant operated a motor vehicle, (b) the defendant intended to operate a motor vehicle after consuming alcohol/drugs, and (c) the defendant’s ability to operate a motor vehicle was impaired by alcohol/drugs.
It is not a criminal offence to operate a motor simply because you have consumed alcohol (unless of course, you are committing the offence of “Over 80”). It is only an offence to operate a motor vehicle if your ability to operate the vehicle is impaired. The Court will consider both your physical and mental ability to operate the vehicle: steering, braking, changing lanes, judgment, perception, etc. In law, you are “impaired” when you are operating the vehicle with less ability than an ordinary, careful driver would in similar circumstances. The Court will look at all of the circumstances including: the manner in which you drove, physical and mental symptoms, conduct and appearance, the smell of alcohol, and any test results.
Client stopped by police who demanded he provide a breath sample. Although he attempted several times, he could not provide a “suitable” one. He was charged with Refuse to Provide Breath Sample. At trial, I challenged the grounds for which the police had to make the demand in the first place. As well, I argued that the police did not prove that the breath sample device was one that was “approved” by law.
Client was followed by police as they believed he was driving a stolen vehicle. They claimed that his driving was impaired by alcohol due to the manner in which the vehicle was being driven.
Client’s vehicle came to the attention of the police who began following him. They claimed he was driving in an erratic manner and upon stopping the vehicle, they believed that he was under the influence of alcohol. He was charged with Impaired Driving.
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