FREQUENTLY ASKED DUI QUESTIONS
80 milligrams (mg) is the “magic number” when it comes to the drink driving laws in most of Canada.
You will commit a criminal offence if alcohol causes you to drive in an impaired way and/or you register a blood alcohol concentration (BAC) of 80 milligrams of alcohol per 100 millilitres of blood (usually called .08) or over within two hours of driving.
Many factors influence the reading from a breathalyzer at a traffic stop – not only the amount of alcohol you have consumed but your body weight, medication, and so on.
The fact is that even one drink can impair your ability to drive. The best policy is to avoid alcohol altogether if you intend to drive.
While cannabis has been legalized in Canada, it doesn’t mean you’re free to drive after taking it.
If your ability of operating a motor vehicle is in any way impaired while driving – be it through the use of alcohol, illicit drugs, or prescription drugs – you may be committing a criminal offence and can be arrested and charged.
Cannabis consumption is confirmed by a blood or urine test, which will measure the amount of THC (the psychoactive substance in cannabis) in your system.
If you read over 2 nanograms (ng) of THC per millilitre of blood, you are breaking the law. If the reading is over 5ng, you will likely face more severe punishments.
While each province imposes penalties for impaired driving, the Department of Justice lays down some federal guidelines for the offence.
These include the following mandatory minimum penalties:
For first-time offenders:
- For a BAC of under 120, there is a minimum fine of $1,000.
- If you are found with 2.5ng of THC per ml and a BAC of 50 combined, the mandatory minimum fine is also $1000.
Fines increase according to BAC content.
- 120 but under 160 a minimum $1,500 fine
- 160 or higher: a minimum $2,000 fine
For second-time offenders:
- A second conviction for any of the above will result in a mandatory minimum of 30 days in prison.
For third-time offenders:
- A third conviction for any of the above will result in a mandatory minimum of 120 days in prison.
The maximum penalty for each of the above charges is 10 years in prison.
Not providing a sample:
- If you are convicted of failure to provide a sample, the minimum fine is $2000.
- If you are convicted of impaired driving causing bodily harm, there is a maximum period of incarceration of fourteen (14) years. Although custodial sentences are common, most are under fourteen (14) years.
- If you are convicted of impaired driving causing death, there is a maximum period of incarceration for life. Again, although custodial sentences are common, most do not receive a life sentence.
- In addition, each province sets mandatory penalties for the removal of driving privileges and participation in drug and alcohol education programs.
Note that if you are convicted of impaired driving in Canada, you will face two separate driver’s license suspensions: a criminal prohibition imposed by the federal government and an administrative suspension imposed by your provincial government.
The provincial justice system in Ontario clamps down especially hard on impaired driving – from the moment you are stopped.
If you fail a field sobriety test or under 21 and fail the zero-tolerance test, you will face:
- An immediate license suspension for three days and a $250 penalty for a first offence.
- A seven-day suspension, a $350 penalty, and mandatory participation in an education program for a second offence.
- A 30-day suspension, $450 penalty, mandatory treatment program, mandatory ignition interlock device for 6 months, and a mandatory medical evaluation for subsequent offences.
If you blow over .08 or refuse to take a test, you will face:
- A 90-day suspension
- Seven-day vehicle impoundment
- $550 penalty
- $281 license reinstatement fee
- Mandatory treatment program
- Mandatory ignition interlock device
If you are convicted in court, in addition to a criminal record, you will face:
- First offence: a one-year license suspension, mandatory education or treatment program, required use of ignition interlock device for a year, and medical evaluation.
- A second offence within 10 years: a three-year license suspension and three years of driving with an IID.
- Further offences: a minimum suspension of 10 years (possibly for life) and six years of driving with an IID.
If a breath test shows that your blood alcohol level was over 80mg per 100mL of blood (or 0.08 percent), you can be arrested and face charges of impaired driving in Canada. Many people think that if they blow over 80, the Crown can automatically prove their charges, and there is no hope to avoid a conviction. Unfortunately, this leads many people to simply plead guilty to the charges without first speaking to a DUI lawyer, which means they often accept penalties that are much harsher than necessary. The truth is that there are ways to fight against a DUI conviction and to minimize the impact on your life. Always discuss a DUI arrest with a DUI lawyer before you make any decisions in your case.
No matter what your breath test results may be, police officers in Canada still must adhere to the law and cannot violate your Charter rights. From the time an officer pulls you over to the time you are released from jail, there are many opportunities for officers to go against required procedures and violate your rights. Any violations can be used as a defence to eliminate key evidence against you in your case.
An experienced DUI lawyer will evaluate the actions taken by police before and during your arrest and identify any mistakes or violations by officers. Errors can allow your lawyer to argue that your breath test results and other evidence should not be allowed in court. While such mistakes might seem like technicalities, these technicalities can mean the difference between your charges being dropped and having a criminal record.
The laws of Canada are always changing and being amended – and criminal laws are no different. Legislators are always examining how to alter criminal offences and penalties. On December 18, 2018, the standing laws regarding impaired driving were repealed, and new laws took effect.
In the months since, many people have opposed the new laws, questioning whether they are unconstitutional. In any event, the laws currently stand, and everyone in Canada should be aware of the new law while it is in effect. The following is a brief overview of some changes made. If you want to discuss a specific situation, speak with Alan Pearse directly.
In the past, in order to make a breath demand, police officers had to have a “reasonable suspicion” that the person was driving with alcohol in their system. The allow officers make breath demands without this requirement. Police can seek breath samples without a reasonable suspicion, at roadside checks, or even at every traffic stop if they wish to do so. This has many people questioning whether random testing violates their Charter rights.
The prior law criminalized driving “Over 80,” which refers to the legal limit for blood alcohol concentration (BAC) for drivers. The language of the law has been changed to “Driving At or Over 08” which means a BAC of 80 can now result in charges. The law also added an important new provision of “within Two Hours of Operation.”
This new two-hour window is a point of controversy because, under the law, a police officer could test your breath for two hours following the suspected drunk driving. In one case, a woman stated she had one drink and then drove to a house, where she consumed additional beers. The police showed up at the house to request a breath test because they claimed they received a report about her driving. Despite her BAC being higher after she consumed the beers – long after she stopped driving – the police arrested her for testing 80 and Over.
This is only one example of how the new law is giving police the authority to demand breath tests – even up to two hours after you stopped driving. Refusing a test can also result in serious criminal charges, so it is important to contact Alan Pearse.
DUI litigation is incredibly complex, to the point that the lawyers who do it tend to focus on nothing else. It is completely, totally, 100% impossible to know if you have a defence by reading a webpage. It’s simply not going to happen. This area of law is so complex, you won’t even know what questions to ask, even if you are already a practicing lawyer or law student. DUI litigation is the criminal law version of brain surgery. The only way you can find out if you have a defence is by calling a DUI lawyer like Alan Pearse.
If you’re convicted of a DUI charge in Canada, you will lose your license.
In fact, that’s just one of several serious consequences that you will face.
Recent changes to both drug- and alcohol-impaired driving laws make Canada amongst the toughest in the world on driving under the influence of alcohol or drugs (DUI).
Other possible ramifications of a DUI conviction include:
- Denial of entry into the United States or elsewhere
- A threat to your immigration status (if you’re not a Canadian citizen)
- Loss of employment
- Denial of certain types of jobs in the future
- Jail time
How long you will lose your license for a DUI conviction depends on whether it is your first offence or not.
If it is your first offence, your driver’s license will be revoked for a period of at least one year. During this time, you will not be able to drive, so this could seriously affect your employment.
The period of time you will be banned from driving increases for multiple offenders.
Usually, for the second offence, your license will be revoked for at least two years. For a third offence, your license will be revoked for at least three years.
There is only one way to avoid losing your license from a DUI charge in Canada. That is to hire an experienced DUI lawyer like Alan Pearse and win your case.
If you lose the case, you will lose your license for at least 12 months.
The good news is that even in the most hopeless case, there is always a chance of an acquittal.
An experienced DUI lawyer like Alan Pearse will closely examine all the evidence against you. He will look for errors, inconsistencies or gaps in the crown’s case.
For the prosecution to secure a conviction they must have a watertight case against you.
Canadian Dui law states that the crown must prove that your ability to operate a motor vehicle was impaired by alcohol or a drug to some extent, and they need to prove this beyond a reasonable doubt.
This is quite a high burden of proof. The conduct of the arresting officer(s) will be assessed to see if any errors were made and their stories will be picked apart for any inconsistencies.
There is always a chance because everything in the prosecution’s case must fit together.
Any weaknesses can be exploited by a good DUI lawyer like Alan Pearse and result in acquittal, even in cases where blood alcohol readings are high and impairment clearly observed.
Examples where there will be no conviction
Just a few examples where a person accused of DUI can escape include:
- When the accounts of the incident from two or more police officers describing your impairment do not precisely match: if there are discrepancies, doubts may creep into the prosecution’s case and this can be used by a good DUI lawyer like Alan Pearse
- If you were left in a state of indefinite uncertainty about your fate in the face of outstanding charges.
- When the prosecution fails to prove that you were operating the vehicle (i.e. that you were behind the wheel) – for instance when the police arrive after an accident.
- If you’re not granted the right to a lawyer at the earliest opportunity.
There are many more possible ways to win an acquittal in a DUI charge.
The short answer is “maybe.”
Impaired driving is an indictable offence in Canada, and people with DUI cases in the U.S. are generally not permitted to cross into Canada. However, if you are charged with DUI in Canada, are you able to travel to the United States? Unfortunately, the answer to this question can vary from situation to situation, and it is always wise to consult with a lawyer before trying to cross the border to the U.S. with any type of criminal record.
Having any type of criminal record can cause issues when trying to enter the U.S. The Customs and Border Protection (CBP) agents have significant discretion to turn people away and refuse to admit them into the U.S. Unless you are a U.S. citizen, you have no absolute right to enter the United States. As such, the best way to avoid being denied entry is to win your impaired driving trial in the first place.
If you are convicted at trial, or if you plead guilty, the answer is “Yes.”
A charge of driving under the influence of alcohol or drugs (DUI) is a criminal charge in Canada, as laid out in section CC 320.14(1)(a) of the Criminal Code.
Some of the main consequences of having a criminal record may include:
- Being denied entry into the United States or other countries
- A negative impact on your immigration status if you’re not a Canadian citizen
- Being denied certain types of jobs
- Jail time
- Losing your drivers’ license
Since the amendments that came into force on December 18, 2021, a criminal conviction for impaired driving can affect the immigration status of anyone who is not a Canadian citizen.
For example, if you have lived in Canada for many, many years as a permanent resident, but never bothered to apply for citizenship, a conviction can affect your immigration status. This is so even if you do not face a custodial sentence.
In this scenario, you are well-advised to contact Alan Pearse to review your file. It would be a major mistake to plead guilty without first considering the immigration/deportation consequences.
Impaired driving convictions come with a mandatory driver’s licence suspension, which can make it difficult to keep your job and meet other obligations. While you likely cannot wait to get your licence back, there is another requirement for all impaired driving offenders before they can get their licences fully reinstated – participation in the Provincial Ignition Interlock Program.
An ignition interlock is a small device that can be attached to the ignition of your personal vehicle. Also called a “blow box” the interlock device requires a breath sample from the driver before it will allow the vehicle to start. The device tests the breath sample for alcohol and will only allow the car to start if no alcohol is detected. The device can require additional breath samples while the car is moving to prevent someone other than the driver blowing and getting the car to start. If alcohol is detected, the vehicle can be disabled.
While the ignition interlock program allows you to regain restricted driving privileges, it can be costly. You will be responsible for all associated costs, including:
- Application fees
- Licence reinstatement fees
- Getting the device installed by Smart Start Canada
- Maintenance and readings of the device
- Rental costs for the device
- Removal of the device
A DUI charge in Canada alone is unlikely to prevent you from engaging in certain types of employment. However, a conviction may do.
Even if it is your first offence, being convicted of impaired driving (as DUI is usually termed in Canada) can have far-reaching effects on your future – including your employment prospects.
It’s important to understand firstly that a DUI conviction in Canada results in what is effectively a lifelong criminal record.
This means that any employer asks for your record will discover the criminal conviction. How they treat this information will depend on their personal views.
If you are pulled over and accused of driving while impaired but the charge is later dismissed or you are acquitted at trial, it will not show on your criminal record.
The main problems arise where:
- An existing employment contract includes a clause to terminate employment in the event of a criminal offence being committed
- As part of your sentence, you need to attend alcohol or substance abuse programs that require you missing time at work
- A future employer is reluctant to hire employees with a criminal record (employers are within their rights to refuse to hire you on these grounds)
- You fail to disclose your DUI conviction on a job application and it is later discovered
- If you get to the interview stage, it is likely that you will have to explain your charge and conviction to a future employer, at the very least.
Some areas of employment are more likely to question a driving conviction than others.
- Jobs where driving is intrinsic to the job description (e.g. long-distance truck drivers, where a clean driving record is requested)
- Roles where considerable road travel is required (e.g. sales representatives)
- Government roles (these require background checks to be conducted)
- Jobs in the educational field
- Roles in sectors where security is paramount, including banking and finance
Finally, bear in mind that employment is not the only area of your life that may be affected by a DUI charge and conviction.
It is likely to affect your freedom to travel, immigration status (if you’re not Canadian), and the ability to get insurance, amongst other aspects of your future.
Taking all this into account, it’s vital to work with Alan Pearse to limit the consequences.
If you are convicted of DUI, yes. How long depends on the circumstances of the file, and your criminal record.
If you are convicted of DUI, maybe. This will depend on the circumstances of the DUI file, and your criminal record. Generally, people with no related record and who have not killed or injured someone do not go to jail, but there are circumstances where this could happen.
Look, I’m a really good person. I’ve never done anything like this before. It’s my first DUI. A criminal record will really make it hard for me to find work, and I REALLY need my license. I need it for work, and I need it to drive my family around. Do you think the crown will just spontaneously drop all the charges?
No, probably not.
Crown prosecutors do stay charges, but it won’t be based on your general good character. Whether you win the DUI charge or not will depend on the specific defences available on your file. It will have nothing to do with your work or family considerations.
Even if you blow over the legal limit or refuse to provide a sample, there may be relevant Charter or statutory applications that can be made. The general public usually thinks of these things as “technicalities,” but the reality is that in a functioning democracy, civil liberties are very important. What to the lay person may seem relatively trivial can translate into an acquittal (i.e. you win). This is because the state (usually via the police) is responsible for protecting your constitutional rights. When they do not do this, they lose the benefit of a conviction.
The way to avoid a criminal record from your DUI charge is to hire an experienced DUI lawyer like Alan Pearse and win your trial.
No matter how hopeless your case seems and how bad the evidence against you looks, Alan Pearse may be able to help.
He is experienced at looking at the evidence against you and finding errors or gaps in the prosecution’s case.
The burden of proof for the prosecution is high and the conduct of the arresting officer(s) can be closely examined.
The prosecution needs to prove that your ability to operate a motor vehicle was impaired by alcohol or a drug to some extent, and they need to prove this beyond a reasonable doubt.
There are many examples of how cracks in the prosecution case can appear.
Examples where a DUI charge may lead to no conviction
Some typical examples of where an accused person will be acquitted of DUI include:
- The prosecution fails to prove that you were operating the vehicle (i.e. that you were behind the wheel). This can be particularly difficult to prove in a case where the police arrive after an accident.
- When the police stopped you, your breath smelt of alcohol and you were slurring your speech. However, if that’s all the prosecution has to demonstrate impairment, you should be acquitted of the impaired driving charge because your inability to operate a motor vehicle was not demonstrated clearly enough.
- Two different police officers describe your impairment differently: if their stories don’t match or there are notable gaps, doubts about the prosecution case will arise in the judge’s mind.
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