Drunk driving law 101

While working in a Vancouver courthouse, I watched a judge tell a self-represented person, who had been charged with drunk driving, to seriously consider hiring a lawyer. The judge said that, in many ways, an impaired driving charge is more complicated than a murder charge.

And, as odd as it may sound, the judge was absolutely correct.

This week’s column will attempt to shed some light on the criminal offence of drunk driving, which, in Canada, is more commonly referred to as ‘impaired driving’.

To start, impaired driving laws have changed significantly in BC in the last few years.

In two previous columns, I have written about those changes: Drunk Driving Laws and Changes and Decriminalizing Drunk Driving.

The big change, in a nutshell, is that the BC Liberals created an administrative process that allows the police to bypass the criminal process. The administrative process is quicker and easier for police, but it has fewer safeguards to ensure the guilt (and the innocence) of those charged with impaired driving. I encourage you to read up on these changes.

Now, not surprisingly, criminal charges are less likely to occur in impaired driving cases (because police often elect to rely on the quicker and easier administrative process).

But, make no mistake: the criminal process remains and people can still be criminally charged with impaired driving. Criminal charges are more likely to occur if there are ‘aggravating factors’ present, which include the driver causing a car crash or the driver having a long and poor driving record.

Now, how does this criminal process actually get started? What are police actually looking for in an impaired driving investigation?

To explain these questions, here is an illustration:

Imagine that, after work, you have a few drinks at a pub and get into your car to drive home. While driving home, you drive into a ‘road-block’ and a police officer stops your vehicle. The officer will ask you if you have been drinking tonight and will closely observe your behaviour. Maybe your breath smells like alcohol? Maybe you slur your words? Maybe you have watery eyes? Maybe you are slow to get out your driver’s licence?

If your behaviour leads the officer to have a SUSPICION that there is alcohol in your body, then the officer can request that you blow into a roadside screening device, which renders a ‘pass’, ‘warn’, or ‘fail’ reading.

If you blow a ‘fail’, then you’ll be taken to the police station to be further submitted to a breathalyzer machine to (more accurately) measure your blood-alcohol level.

If, at the police station, your blood alcohol level is higher than ‘0.08’, then then the police officer will forward their notes and your breath results to Crown Prosecutors who will decide whether or not to proceed with criminal charges.

If criminal charges are laid, then you’ll likely have two separate charges against you: one charge for “impaired driving” and another charge for “driving over 0.08”.

Now, you may be thinking: “How does that happen?! Two criminal charges for one offence?” Well, yes, this happens. And here’s the law:

According to section 253(a) and (b) of the Criminal Code, it is a criminal offence to operate a motor vehicle:

a)  if you are impaired by a drug or alcohol; OR

b)  if you have consumed alcohol in such a quantity that the concentration in your blood exceeds eighty milligrams of alcohol in one hundred milliliters of blood (i.e. “driving over 0.08)”.

Now, it may sound strange, but Crown Prosecutors will typically lay charges under both section 253(a) AND (b).

For technical/legal reasons, you cannot be CONVICTED on both charges: so, even if you are guilty of both charges, only one of the charges will appear on your criminal record. But, when defending an impaired driving case, you or your defence lawyer MUST fight against BOTH charges.

Now, what does Crown have to prove in their case?

Well, for the impaired driving charge, the Crown Prosecutor needs to prove that your ability to drive was impaired. This is typically proven by calling the arresting police officer as a witness and having him/her describe your impaired-type behaviour, which can include your slurred speech, lack of balance, odour of alcohol on breath, and/or erratic driving.

For the “over 0.08” charge, the Crown will rely on your breath results taken from the breathalyzer machine.

For each offence, there are several rules that the police and the Crown MUST follow. If not, then Crown will lose its case.

For example, the police must inform an alleged impaired driver of their ‘right to counsel’ (i.e. their right to speak to a lawyer) when they are arrested. If the police don’t do this, then the breath results may not be allowed into evidence at trial (and the criminal charges may be ‘thrown out’).

I wish I could continue, but there is NO WAY that I can describe impaired driving law in one column. There are VOLUMES of material on this subject – it is very, very complicated.

But, with that said, there is ONE thing that is simple about impaired driving: don’t do it.


**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

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About the Author

Jeff Zilkowsky is a lawyer practicing at MacLean Law in the Lower Mainland and in Kelowna, and focuses his practice on family law and litigation.  

In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 

The information contained in Jeff’s column should not be used or relied upon as legal advice.

Comments are always appreciated and encouraged, so don’t hesitate to email Jeff at [email protected]

Visit Jeff’s website at www.jeffzilkowsky.com or visit the website of MacLean Law.

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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