Dui, impaired driving, impaired operation, 80 over, refusal
The best lawyers specializing in DUI, Impaired Driving, Impaired Operation, 80 Over, and Refusal law.
quick points
First thing’s first: Canada doesn’t use the term “DUI”. You’ve likely been charged with Impaired Operation, 80 Over, or even more likely, both. Not sure? Check the section numbers on your Undertaking: 320.14(1)(a) for Impaired, 320.14(1)(b) for 80 Over.
Prosecutors telling you they’ll drop the Impaired if you plead guilty to the 80 Over? Not a deal. You can’t be convicted of both. Facing a refusal charge? That’s a different story.
Impaired Operation is one of the most complicated offences in the Criminal Code. Complicated means police are more likely to make mistakes. DON’T JUMP INTO A GUILTY PLEA. A guilty plea means a criminal record and a driving prohibition. This prohibition is in addition to the 90 day suspension you are, or were already on.
Not your first Impaired? Contact us. Now. There are serious consequences and they are time sensitive. This includes mandatory jail sentences, a three-year licence suspension, or worse, a life-time one.
If a lawyer tells you he can get you out of a DUI without first having reviewed your disclosure, run, don’t walk. Talk about how they used to be a prosecutor and a police officer is irrelevant.
Your 90 day suspension and 7 day vehicle impoundment is thanks to the Province, not the Criminal Code.
And while you can’t appeal the 90 day suspension, you can get your licence back as soon as that suspension is done. Just be ready to fork over $750-ish to the Ministry of Transportation.
As for the impound, have a licence driver get that vehicle out the minute the 7-day suspension is up. Daily impound fees add up.
WHAT'S THE DIFFERENCE?
Dui, impaired driving, impaired operation, 80 over, over 80, refusal
DUI
This one’s easy: “Driving Under the Influence” is a term used in a number of states and Hollywood. Our Criminal Code doesn’t use this terminology.
Impaired driving
This term is close, but not quite right. The problem here is “Driving”. Why? Because you don’t need to be driving to be charged with the correct offence: Impaired Operation or, more accurately, Operation while Impaired
Impaired operation or operation while impaired
Section 320.14(1) of our Criminal Code sets out the correct terminology we’re looking for. More accurately, “Operation while Impaired”.
The way this section is written into our Criminal Code is a little confusing. That’s because the heading of Operation while Impaired under section 320.14(1) is not the offence per se; it’s the four offences listed under this heading. These are,
320.14(1)(a): Operating while Impaired (by alcohol or drug or a combination of the two)
320.14(1)(b): 80 Over within two hours of having operated a conveyance (more on this below)
320.14(1)(c): Drug per se (think the drug version of 80 Over)
320.14(1)(d): Combined alcohol and drug per se
We’ll explore these offences further below. For now, I mentioned earlier that driving isn’t necessary to make out any of these offences. This is because of the term “Operation”.
operation
“Operation” is defined under section 320.11 of the Criminal Code as meaning to “drive” or to have “care and control” of a motor vehicle. “Care and Control” was a term we commonly used prior to changes to impaired driving law back in 2018. Today, it’s simply falls into the “Operation” term.
That’s because if you look at section 320.35 of the Criminal Code, you’ll find a presumption used in law (meaning the law presumes it to be true unless convinced otherwise); specifically, that “if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operated a conveyance, the accused is presumed to have been operating the conveyance.”
Put simply: Sitting in the driver’s seat (whether the car is running or not) is enough to get you charged.
Think of it this way: if we could only lay a DUI if the person actually drives the vehicle, that means we would be powerless to stop someone who is absolutely from getting in the driver seat with keys in hand. Police would have to wait until the intoxicated person put the car in motion and by that time, it may be too late!
Remembering that operation is a presumption, it is open to the accused to testify and convince the judge otherwise. “Your Honour, I was sitting in the driver’s seat so I could turn the car on and stay warm.” This approach, however, is not always the best defence. The test is whether there was a “risk” of the accused putting the vehicle in motion. This argument has succeeded where, for example, the accused called a cab to pick him or her up before passing out in a running vehicle. Others have had success when their keys were out of reach. Just don’t be surprised if your lawyer recommends against this defence. There are usually stronger defences available.
Care and control
The term “Care and Control” was addressed some time ago by our Supreme Court in R. v. Toews, [1985] 2 S.C.R. 119. Here, the Court explained,
… acts of care or control, short of driving, are acts which involve some use of the car … or some course of conduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous.
Overtime, courts focused on the risk that the accused person will create a dangerous situation when addressing whether a person had care or control of a vehicle. Said another way, what was the risk of the accused putting the vehicle in motion, given the intoxicated state he or she was in.
Again, it’s easy to say that, “I was asleep and therefore not going to drive” or “my seat was reclined so clearly I wasn’t going to drive.” Unfortunately for the accused, the courts typically come back with, “you were intoxicated at the time. You could have changed your mind, accidentally put the car in motion, misjudged your level of impairment and believed you were okay to drive” etc.
And this brings us back to “rebutting the presumption” of Operation found under 320.35 of the Criminal Code. If you were found in the driver seat, it’s up to you to convince the court that you did not pose a risk of putting the vehicle in motion. Trust us when we say there are stronger arguments to make when fighting an impaired operation charge.
80 Over (over 80)
This charge is found under section 320.14(1)(b) of the Criminal Code. It makes it an offence to operate a motor vehicle with 80 milligrams of alcohol per 100 milliliters of blood or higher. (Good luck trying to figure how much you can drink before you’re at that level.)
Note that prior to the 2018 amendments to impaired operation laws, the offence was “Over 80”. Big difference. Why? Because back then, it was technically legal under the Code to drive with 89 milligrams in your system. This is because when samples of breath are taken, they are rounded down to the nearest multiple of 10 (to accommodate any minor inaccuracies in the measurement of breath samples in favor of the accused.) We’ll cover more on this area of the law below.
For the purpose of this quick definition, known that there are two devices police use to determine how much alcohol you have in your system: an “Approved Screening Device” and an “Approved Instrument”. To keep things simple, think of the first as the device you blow into at the roadside; the second as the one you provide breath samples into at the police station.
The difference between the two is important:
With the Approved Screening Device, the readings provided to police will be a pass, a warning, or a fail. All this device does is give an officer grounds to either charge you under the Ontario Highway Traffic Act for blowing a warning (see the note below), or grounds to arrest you for 80 Over if you blow a fail.
At the police station, you will be required to provide breath samples into the Approved Instrument. In most cases, it will be 2 samples given at least 17 minutes apart. Those two samples will give you an actual number representing how much alcohol you have in your system. If both readings are 80 or higher, then you will be formally charged with 80 Over.
NOTE: While the Criminal Code says that the legal limit is (below) 80, that doesn’t mean a lower reading won’t get you in trouble.
In Ontario, for example, the legal limit is (below) 50. (Zero if you don’t have your full G licence.) Blowing a 50 up to a 79 will land you with your vehicle being impounded and, on a first offence, 3 day licence suspension.
Refusal
The technical name for this offence is “Failure or Refusal to comply with Demand”. For our purposes here, a Refusal is made out where an officer makes a lawful demand for you to provide samples of breath, urine, blood, or to perform a physical test to make observations of impairment easier.
If the Crown can prove the officer made a lawful demand (under the Screening provisions under 320.17 or the Evidentiary provisions under 320.18), that the person refused to comply with the demand, and that same person had no lawful excuse to refuse, the offence is made out. With that said, if the Crown fails to prove even one of the three, you beat the charge.
“I have been charged with a DUI and they gave me a court date. I don’t know what to do.”
If this applies to you, you may want to begin with our “First Time Charged?” page. After reading it, hopefully you’ll be able to relax a bit. Remember: the system is designed to resolve matters, not to head to trials.
If you have been charged with a “DUI”, police likely released you with a document called an Undertaking setting out your first court date and a date for fingerprinting/photos (if they haven’t already been taken.)
As mentioned earlier, in Canada, we don’t use the term “DUI”. Instead, we have five related charges, with the three most common being:
- Impaired Operation (by alcohol or drug, or a combination of the two): 320.14(1)(a);
- 80 Over: 320.13(1)(b); and,
- Refusal (to comply with a demand): 320.15
The remaining charges that were created in 2018 are,
- Drug per se limits: 320.14(1)(c); and
- A mix of alcohol and drug per se limits: 320.14(d).
With the exception of Refusal, all charges are found under the same section of the Criminal Code: 320.14. Let’s look at what each of these sections mean.
Impaired Operation and 80 Over: What’s the Difference and why am I charged with both/only one?
What’s the difference between Impaired Driving and 80 Over?
Impaired Driving
Impaired Driving or Operation while Impaired deals with observations and alcohol or drug. What I mean by this is where an officer has reasonable grounds to believe that a person has alcohol or drugs in his or her system AND observes even slights symptoms of impairment, the offence is made out.
80 Over
With 80 Over, we’re dealing with only alcohol. And we don’t care what the person looks like or sounds like. 80 Over is strictly concerned with how much alcohol a person has in their body. The criminal legal limit is less than 80 milligrams of alcohol in 100 milliliters of blood (because at 80 or higher, you’re getting charged).
The way we determine how much alcohol a person has in their system is most commonly through breath samples. Failing that, blood can be seized and tested.
Confused? Well, the good news is that you can only be convicted of one. So, if the Crown offers you a “deal that they will drop one charge if you plead guilty to the other, that, in itself, is no deal at all.
The reason you can’t be convicted of both is because of a case called Kienapple. This case just explains that a person shouldn’t be convicted more than once for the same conduct. You’ll see this with charges of Sexual Interference and Sexual Assault, Theft and Robbery, and with Impaired Driving and 80 Over. In the case of the last two charges, they are simply two different ways of tackling the same problem: A person operating a vehicle with too much alcohol in their system. Two quick points on this:
- While you can’t be convicted of both, you will need to beat both to walk away “scot-free.” They essentially carry the same sentence.
- This doesn’t apply to charges including a Refusal. Impaired and 80 Over involve consuming too much alcohol and driving; Refusal involves refusing a lawful demand (there are ways to beat Refusal charges covered later).
If you’re still having trouble understanding the difference between Impaired Driving and 80 Over, it may be helpful to look at two extreme examples these laws will capture:
- The first, a person who drinks very little before they experience observable impairment (i.e., someone who can’t “hold their liquor.”); and,
- The opposite: a person who can drink quite a bit of alcohol, yet doesn’t show outward signs of impairment.
These laws are meant to capture both types of people, and everyone in between.
Now let’s go to the example of someone pulling up to a R.I.D.E. checkpoint:
Scenario A
At the checkpoint the officer asks, “have you had anything to drink?”
- The driver may respond,
- “yes” and give the officer details: “I had two a few hours ago” (for some reason, people always say “two”);
- There may be an open bottle or can of alcohol in the vehicle (you would be surprised how often this is the case); or,
- The officer may smell an alcoholic beverage on the person’s breath.
- While the driver answers the officer’s questions—sometimes even before the driver responds—the officer may also note signs of impairment. At this stage of the interaction, these signs are typically,
- Red/glossy/watery eyes
- Slurred speech (ranging from slight to pronounced)
- The driver struggling to find their documents or dropping them
- The officer may then ask the individual to exit their vehicle and observe the person,
- Have difficulty exiting the vehicle
- Swaying as they stand
- Holding themselves up against the vehicle
- With evidence of impairment and the consumption of alcohol, the officer now has the grounds to charge the individual with Impaired Operation, i.e., the officer is observing signs of impairment AND knows alcohol, at least to some degree, if involved.
IMPORTANT: By no means does the officer need to observe all or most of these signs. The law says impairment, “to any degree”. Red, glossy eyes and evidence of consumption (also to any degree, really) is enough to set out the offence.
This is where the additional charge of Over 80 comes in.
- Arresting the person for impaired driving now gives the officer the grounds to demand that the driver accompany him or her to the police station, and provide samples of breath into what’s called an Approved Instrument or A.I. (More on this later.)
- For now, it’s enough to know the A.I. is the machine that will tell the officer what the driver’s BAC is. Anything that is 80 or higher will result in the additional charge of 80 Over.
- And there you have it, a driver facing both impaired driving and 80 over.
- Technically, a person who is arrested for impaired driving may blow less than an 80 BAC (again, think of the light weight who can’t handle their drink). Though, I haven’t come across such a case.
Scenario B
An officer stops a driver at a RIDE checkpoint. Again the driver admits to having a drink, there’s open alcohol in the vehicle, or the officer smells an alcoholic beverage on the driver’s breath.
- This time, however, the driver appears perfectly sober.
NOTE: as of 2018, an officer no longer needs to suspect a person has alcohol in their body. We will discuss this under a separate section but for our purpose here, know that an officer can now demand you provide a sample of breath into an ASD so long as they find you operating a vehicle. No admission, observation, or smell of alcohol required.
- The officer can now make one of two demands:
- That the driver provide a sample of his or her breath into what is know as an Approved Screening Device or ASD (think of the devices we see people blowing into in impaired driving commercials); or,
- the less commonly used Standard Field Sobriety Test or SFST. Here, the officer has the driver perform a horizontal nystagmus test (watch a moving finger and look for an eye twitch), standing on one leg, and walking heel to toe.
- The ASD is calibrated to provide a warning where the person has anywhere from a 50 to 99 BAC (resulting in provincial sanctions including a licence suspension and your vehicle being impounded), or a fail at 100 BAC.
- Some police services will also provide you with a number of additional documents such as,
- The Certificate of a Qualified Technician,
- Printouts from the Approved Instrument, 8000c,
- The Notice of (Motor) Vehicle Impoundment and Release,
- The Notice to Registrar/Notice of Suspension and Impoundment, and
- Notice of Application for Increased Penalty
Let’s take a quick look at these documents:
