Impaired Driving Charges in Canada: What You Need to Know
By Matthew Wolfson, Partner at David Anber’s Law Office
Representing clients across Canada (except Quebec)
Being charged with impaired (colloquially known as DUI) driving can be one of the most stressful experiences a person faces. Many people arrested for this offence have never been in trouble with the law. Once arrested, they are suddenly dealing with police paperwork, licence suspensions, and uncertainty about what comes next. It’s common to feel embarrassed, overwhelmed, or afraid of the consequences. Understanding how impaired driving law works — and what options exist — can help you regain a sense of control.
This article explains impaired driving charges in clear, accessible language. It is general information only. Every case is unique, and anyone charged should seek legal advice tailored to their situation. Nothing below should be considered legal advice.
What Counts as Impaired Driving in Canada? Impaired driving is governed by sections 320.11 to 320.4 of the Criminal Code, which covers alcohol, drugs, and refusal‑related offences. The law is broad and captures several different situations. The main categories include: 1. Impaired Operation (Alcohol or Drugs) This charge applies when a person’s ability to operate a vehicle is impaired to any degree by alcohol, drugs, or a combination of both. 2. Having a Blood-Alcohol Concentration of 80 mg of alcohol per 100 mL of blood within 2 Hours of Operation This is based on approved instrument (colloquially referred to as "Breathalyzer") results. Even if you appear sober, blowing over the limit is a separate offence. 3. Drug‑Impaired Driving This includes impairment by cannabis, medication, illegal drugs, or any "drug" that affects ability to drive. 4. Refusal or Failure to Provide a Sample Refusing a breath test, blood test, or roadside screening device is a criminal offence with penalties equal to — and sometimes harsher than — impaired driving. It should be emphasized that an accused can be convicted even if s/he was not driving per se. Sitting in the driver’s seat will usually be enough to result in a conviction if if an excessive Blood-Alcohol reading, impairment, or refusal to provide a sample is proved.
How Police Investigate Impaired Driving Police use several tools and procedures to detect impairment. Understanding these steps helps explain where legal issues often arise. 1. Traffic Stop A stop may occur because of a driving pattern, a traffic violation, a random checkpoint (RIDE program), or a complaint from another driver. Police do not usually need grounds to stop a vehicle. In Ontario (and other provinces), police are permitted to stop any vehicle on a public road to check sobriety. 2. Reasonable Suspicion Before demanding a roadside test, police often need reasonable suspicion that alcohol or drugs are in the driver’s body. This can come from the smell of alcohol, an admission of drinking, red eyes, slurred speech, or erratic driving. However, where an officer has an Approved Screening Device (ASD) with him/her, the officer can make a demand for a roadside breath-test to a driver at random. 3. Roadside Screening (Approved Screening Device – ASD) This handheld device gives a Pass, Warn, or Fail result. A “Fail” usually leads to arrest and a demand for an approved instrument (a.k.a. "Breathalyzer") test at the police station. 4. Breathalyzer Testing (Approved Instrument) At the police station, two (or more) breath samples are taken at least 15 minutes apart. The results must be taken according to specific conditions (e.g. taken by a qualified breath technician with an approved instrument that meets testing criteria). 5. Drug Recognition Evaluation (DRE) For some arrested persons, a specially trained officer conducts a DRE consisting of eye exams, coordination tests, vital signs checks, and toxicology sampling. 6. Blood Samples Blood may be taken in some circumstances (e.g. if a person is unconscious, a collision has occurred, or a warrant is obtained). 7. Questioning of the Accused Once a person has been given a reasonable opportunity to speak to a lawyer first (or declines the opportunity to do so), police will ask the accused a series of questions (e.g. how much they drank prior to driving or how impaired they feel). An accused is not required to answer such questions.
Penalties for Impaired Driving Impaired driving carries serious consequences under both federal criminal law and provincial licensing rules. Criminal Penalties Penalties vary depending on the offence and whether it is a first, second, or third conviction. • First offence: minimum $1,000 fine (depending on breath readings) and a 1‑year to 3-year driving prohibition • Second offence: minimum 30 days in jail and a 2-year to 10-year driving prohibition • Third offence: minimum 120 days in jail and a 3-year or more driving prohibition • Refusal charges: minimum fine of $2,000.00 for a first offence (jail and driving prohibitions follow the same minimum penalty pattern as above for subsequent offences) If a person has a prior conviction for impaired/80+, but the subsequent conviction is a refuse (or vice versa), this will still be a subsequent offence scenario. It is important to note that the minimum penalties for subsequent offences (e.g. second and third offences) are only mandatory if the prosecution proves • that the accused was served with the prosecution's notice to seek the upgraded penalty • that the accused had a prior offence for impaired, 80+ BAC, refuse Ontario Licence Suspensions Regardless of the driving prohibition a court may impose, the Ontario Ministry of Transportation automatically suspends drivers' licences (concurrent to the prohibition) for • First offence: 1 year • Second offence: 3 years • Third offence: indefinitely (for at least 10 years) Where found guilty of impaired driving, 80+ BAC, refuse to provide samples, dangerous driving (section 320.13 of the Criminal Code), failure to stop after an accident (section 320.16 of the Criminal Code), flight from a police officer (section 320.17 of the criminal code), and homicide with a vehicle. A combination (e.g. one finding of guilt for dangerous driving and a second finding of guilt for impaired) will result in the upgraded suspension. These upgraded licensing consequences apply regardless of whether the Crown proves the prior convictions in court and/or proves notice of its intention to seek an increased penalty. The Ministry of Transportation works independently. Administrative Provincial Penalties (Ontario) These apply immediately, even before the case goes to court: • 90‑day licence suspension • 7‑day vehicle impoundment • Mandatory education programs prior to licence reinstatement (for drivers who fail two roadside tests within a certain period of time) Insurance Consequences A conviction can result in extremely high premiums or denial of coverage.
Common Defences in Impaired Driving Cases Every case is different, but several defence strategies appear frequently. 1. Violations of Charter (Constitutional) Rights This is a very common defence strategy for such cases. A non-exhaustive list of examples of common violations includes • unlawful detention (e.g. a random Highway Traffic Act stop on private property) • arrests without proper grounds to believe the accused committed the specific offence • improper demands (e.g. late demands for breath samples) • delays in informing about counsel rights • delays in providing access to counsel • failure to provide counsel of choice • unreasonable searches Where the defence proves these breaches, courts can exclude (disregard certain evidence) such as breath samples if the breach is sufficiently serious. 2. Problems With the Breathalyzer Process Defences may involve improper calibration, incorrect operation, timing errors, contaminated samples, or failure to follow mandatory procedures. These defences are rare. 3. Identity and Care or Control Issues The Crown must prove who was driving and whether the person had care or control. For instance, in some cases, police arrive at the scene where the accused is not sitting in the driver's seat. In such cases, care/control/driving may be harder to prove. 4. Necessity In rare situations, impaired persons are faced with no choice but to drive in order to escape a very dangerous situation.
What to Expect After Being Charged Understanding the process can reduce uncertainty. 1. Immediate Consequences Administrative driver's licence suspension (90 days in Ontario for first offenders, but varies by province), impoundment, and paperwork with your first court date. 2. First Court Appearance These are not trials. This is the stage where courts expect to hear about the next steps the accused wishes to take. Lawyers usually appear without their clients at this stage, but accused persons without lawyers must attend. 3. Disclosure The Crown provides police notes, breathalyzer records, video footage, witness statements, and qualifications of breathalyzer technicians. 4. Resolution Discussions Depending on the evidence, resolution outcomes may include withdrawal of the charges (sometimes in exchange for a guilty plea to a non‑criminal driving offence), plea negotiations on final sentence, or trial. 5. Trial A judge decides whether the Crown has proven the charge beyond a reasonable doubt.
Common Myths About Impaired Driving Charges Misunderstandings about DUI law are extremely common. These myths can cause unnecessary panic — or false confidence. Myth 1: “If I wasn’t actually driving, I can’t be charged.” A person can be charged with impaired care or control even if the vehicle never moved. The question is whether the accused had care or control of the vehicle. This can be established where a person sits in the driver's seat (even if the car is not running). Myth 2: “If I refuse the test, they have no evidence.” This would be true as it pertains to breath samples needed to prove an 80+ BAC charge. However, refusing to comply with a lawful demand for a breath test is a criminal offence with penalties equal to — and sometimes harsher than — impaired driving. It is not an offence to refuse to comply with an unlawful demand, but it is very difficult to determine whether the demand is lawful at the time of the arrest. Moreover, although a refusal may deprive the prosecution of breath samples, the police can still collect other evidence of alcohol/drug consumption and impairment (e.g. empty beer bottles, a smell of alcohol on breath, poor balance, bad driving, etc.) Myth 3: “I blew over, so I’m automatically guilty.” When results of breath tests are accepted by a court, a conviction will follow. However, there are several strategies to prevent the admission of those breath results. Breathalyzer results depend on timing, calibration, proper operation, and Charter‑compliant procedures. Myth 4: “If the officer didn’t read me my rights immediately, the case is over.” Information about rights to counsel must be provided immediately - subject only to legitimate concerns for safety. Even short delays can amount to a rights violation. However, short delays does not necessarily mean that critical prosecution evidence will be excluded. In fact, there are very few categories of rights violations that result in automatic acquittals/stays of proceedings. The result usually depends on the seriousness of the rights violation - a very fact-specific inquiry. Myth 5: “I can talk my way out of it.” Anything said to police can be used as evidence. Remaining calm, polite, and exercising your right to silence is often safest. While drivers do have a legal obligation to comply with lawful demands for breath tests and sobriety tests, they are not required to make statements. Doing so very often does more harm to the defence than good. Myth 6: "If I had a lot to eat, I should have lower breath readings." Approved instruments measure alcohol vapour in the lungs.
If You’re Facing an Impaired Driving Charge, Early Legal Advice Matters
Impaired driving cases are technical, time‑sensitive, and evidence‑driven. Speaking with a lawyer early can help you understand what the evidence means, whether the police followed proper procedures, what defences may be available, and how to protect your licence and your record.
Matthew Wolfson offers free, confidential consultations to individuals facing impaired driving charges.