Drinking and driving is the most common crime committed in Canada. It is also the greatest cause of criminal injury and death.

3,292 drivers were charged with impaired driving between 1990 to 1996. The typical impaired driver who is stopped by the police is:

Most people now agree that drinking and driving is a serious problem. Community groups, like MADD and SADD, have formed. Clubs and bars have programs so their customers can go home without driving. Friends agree who will be a designated driver when they go out together. New laws are in place and our judges are giving tougher sentences. Clearly, community attitudes about drinking and driving are changing.

The law about drinking and driving can be confusing. This pamphlet will explain these laws to you. It will also tell you about the procedures involved, and what may happen to you if you are found guilty of an offence involving alcohol and a motor vehicle.

If you drink and drive, there are several possible legal consequences.

• You can be charged with a crime under the federal Criminal Code and sentenced in criminal court.
• You can lose your driver's license under the provincial Highway Traffic Act and be prohibited by the criminal court from operating a motor vehicle on any street, road, highway or any other public place in Canada.
• Your car insurance rates can increase.
• If people are injured or killed, or their property damaged, you can be sued.

We will explain these things to you in detail.

The Criminal Code contains several crimes involving drinking and driving. The police can lay the following criminal charges. (To learn more, read the parts of this pamphlet called "Application of These Laws", and "Roadside Screening Device, Breathalyzer and Blood Tests".)

1. Impaired driving

It is an offence to drive, or have care or control of a motor vehicle, while your ability to drive is impaired by alcohol or a drug. Impairment is shown by physical symptoms, such as slurred speech, bloodshot eyes, the smell of alcohol, unsteadiness on your feet or a lack of co-ordination. It may also be shown by the way you drive.

The amount of alcohol or drugs doesn't matter -- just that you're impaired. You can even pass the Breathalyzer and still be charged. The police may lay this charge when a Breathalyzer instrument is not used, or when you are impaired because of other things, such as over-the-counter drugs, prescription drugs or illegal substances.

The police often lay this charge along with the charge of "driving over the limit", although if you're found guilty of one charge, the second does not usually go ahead.

2. Drinking and driving under the age of 19

Drivers, under the age of 19, who are convicted of driving with a blood alcohol concentration of over 10 milligrams of alcohol per 100 milliliters of blood (a reading of over .01 on the Breathalyzer) face a fine of up to $500 and licence cancellation of three months for the first offence. Each cancellation after this will result in an additional fine and six-months licence cancellation.

3. Driving "over the limit"

It is a crime to drive or have care or control of a motor vehicle while the level of alcohol in your blood is over the limit of .08. This is measured by tests of your breath by a Breathalyzer instrument, or by a blood test. These tests are described in more detail later in this brochure.

You can't be forced to take a breath or blood test. You can refuse. Refusal, though, without a reasonable excuse, is a crime with the same penalties as being over the limit.

4. Refusal

It is a crime to fail or refuse (without a reasonable excuse) a police officer's demand that you:

• blow a sample of breath into an approved Screening Device; or
• blow samples of breath into a Breathalyzer instrument; or
• give blood samples.

You cannot choose which you want to give, that choice is made by the police officer making the demand.

A refusal means saying no. It also means acting in a way that prevents the police from getting a sample, like running away or not making a genuine attempt to blow properly.

You do not have to take the Breathalyzer or approved screen device tests or give a blood sample if you can show that you have a reasonable excuse for not doing so. For instance, you may have a severe health problem which won't permit you to blow. You will likely need medical evidence of your condition. If the police charge you with refusal, you can plead not guilty. It will then be up to the judge at your trial to decide if your excuse was reasonable.

5. Impaired or dangerous operation of a motor vehicle causing bodily harm or death

These are two offences with heavier penalties. They are laid if your drinking and driving causes death or bodily harm to others. If the right circumstances exist, other serious charges can be laid, such as dangerous driving, manslaughter or criminal negligence.

6. Driving while prohibited or while disqualified

This charge is laid if you operate a motor vehicle while you are disqualified. You are disqualified when the judge orders a driving ban as part of your sentence at your trial. You are also disqualified when the province cancels your license after a conviction.

In the past, a person convicted of driving while his or her licence was under cancellation for impaired driving would receive another cancellation which was to be served concurrently. Now, a similar conviction will result in an additional six-month cancellation of their driver's licence to be served at the expiry of the first cancellation.

People often don't understand the way these drinking and driving laws work. Many people do not realize that the drinking and driving offences apply:

• whether your motor vehicle is moving or parked.

All that need be shown is that you had "care" or "control" of the vehicle. Simply being in the driver's seat, or around your car with the keys in your pocket or purse, could mean the judge may find that you had care or control.

• whether you are on public or private property.

It is no defence to say you were only on private property, like a parking lot, driveway, or your own back yard.

• whether you were in a car or another type of vehicle.

These laws cover all kinds of motor vehicles, such as a truck, motorcycle, snowmobile, all-terrain vehicle, moped, ride-on lawnmower, boat, or airplane.

• whether the motor vehicle was operational or not.

A motor vehicle is still a motor vehicle even if it is out of gas, the battery is dead or other mechanical failures have happened to it.

1. The Approved Screening Device

The police may ask you to take an approved screening device test if you are operating a motor vehicle, or have care or control of it, and they reasonably suspect that you have alcohol in your body. The officer could get this reasonable suspicion from things like:

• your manner of driving,
• your physical appearance or behavior,
• the smell of alcohol on your breath,
• your responses to questions,
• or by a report the officer has received.

If suspicious, the officer may demand that you blow into an approved screening device. This is usually used at the side of the road to screen people for drinking and driving. It is an offence to refuse to take this test without a reasonable excuse.

The screening test has three readings: pass, fail, or warn. If you blow a pass you may legally go on your way. If you get warn, you can go, but should not drive in case your blood alcohol level is on the way up. If you blow a fail on the Roadside Screening test, you still have not committed an offence. But this usually gives the officer grounds to make a demand that you take a Breathalyzer test. Even if no approved screening test is done, the officer can ask you to take a Breathalyzer test in the circumstances described below.

2. The Breathalyzer

The police may ask you to take a Breathalyzer test if they believe on reasonable and probable grounds that within the last two hours:

• you were driving while impaired or with a blood
• alcohol reading over .08;
• you had care or control of a vehicle while impaired or
• with a blood alcohol reading over .08.

It is an offence to refuse to take the Breathalyzer test unless you have a reasonable excuse.

The police will ask you to go to the office or to a portable Breathalyzer instrument at the side of the road. To have a proper test, you must blow into the Breathalyzer instrument at least twice, at least 15 minutes apart. You can't smoke or drink anything during that time. The Breathalyzer will give a reading of the level of alcohol in your blood for each test. If your reading is over .08, you may be charged.

If you are charged, the police usually give you a paper, called a "certificate of a qualified technician", showing the readings for each test. Keep this certificate to show your lawyer. The police will usually present their copy in court as evidence of the offence.

3. Blood Test

If for some reason a breath sample can't be taken (for example, after an accident involving an injury to the driver's mouth), the police can ask for a blood sample. This must be done in a proper medical setting, and only if it won't endanger your life or health. If there was an accident where someone was injured or killed while you were drinking and driving, the police may get a warrant from a judge to order blood samples taken from you, even if you can't give your permission (for example, because you're unconscious).

You have rights given to you by the Charter of Rights and Freedoms. You have the right to talk to a lawyer before deciding whether to take the Breathalyzer test or to give a blood sample. The police officer must tell you about this right, about legal aid and must make sure you understand this information. You must be given a chance to speak to a lawyer in private, usually on the phone. If you don't know a lawyer, look in the yellow pages of the telephone directory. Ask for help if you need it.

The police must tell you if they lay charges, and what the charges are. You have the right to remain silent, and to talk to a lawyer before giving an oral or written statement to the police.

The law says what procedures are followed by the police and the courts once you are charged with a crime. We are covering only part of this procedure to answer some basic questions you may have. For more information about procedures, contact CLIA or your lawyer.

Release

If charged, you are usually released, as long as you do not drive. Sometimes people are kept overnight if they are quite intoxicated.

You can be kept in custody if the police think you may not show up in court, or may commit another crime, or if you can't be identified. If so, you will likely go before a judge or a Justice of the Peace within 24 hours for a decision or scheduling a hearing on whether you should stay in jail until your trial.

If you are released, you will be given a notice to appear in Provincial Court at a particular place, time and date, usually several weeks later.

If you plead guilty in court, the Crown Attorney will then tell the Judge the facts that led to your charge. If the judge finds this shows you committed the offence, he or she will accept your guilty plea. This means you will be sentenced. This usually happens immediately. But if the judge orders a pre-sentence report (prepared by a probation officer), you will be sentenced on another day.

If you plead not guilty, a date is set for your trial, usually several weeks or months later. If the judge finds you not guilty at your trial, you are free to go. If you're found guilty at your trial, you are sentenced.

The Criminal Code lists a maximum penalty, or sentence, for each drinking and driving offence. What the sentence will be also depends on whether this is your first offence, on your personal circumstances, and on other factors.

Even first time offenders are often sentenced to some time in jail, payment of a large fine and payment of a victim fine surcharge.

Drivers convicted of a first offence for impaired driving will have their driver's license cancelled by the Highway Safety Division for one year. For a second conviction, drivers receive a two year cancellation and a third or subsequent conviction results in a three year cancellation. As well, the criminal court will make an order prohibiting you from driving. (If you drive when you are prohibited by criminal court you may be charged with the crime of driving while prohibited.

Being convicted usually means you have a criminal record. After a certain period of time without getting into trouble with the law again, you can apply for a pardon if you wish. For information on pardons, contact CLIA or a parole/probation office.

Although you don't need a lawyer to go to court, it's a good idea to get advice from a lawyer. You may want to do so before deciding how to plead, or to see if you have a defence which can be argued at your trial. If you intend to plead not guilty, a lawyer can help you by handling your trial. It's also best to have a lawyer's help if you feel your rights under the Charter were not followed.

If you don't know a lawyer, try the Lawyer Referral Service. If you can't afford a lawyer, you may qualify for legal aid from the Public Defender's Office. This office provides a lawyer for people who have low incomes. It's free if you qualify.

Your driving privileges are affected if you get a drinking and driving conviction.

As part of your sentence, the judge will order you not to drive for a certain period. This is called a driving ban or a driving prohibition.

In the past, a person convicted of driving while his or her licence was under cancellation for impaired driving would receive another cancellation which was to be served concurrently. Now, a similar conviction will result in an additional six-month cancellation of their driver's licence to be served at the expiry of the first cancellation.

Besides the driving ban, provincial law also cancels your driver's licence for a drinking and driving conviction and in addition disqualifies you from getting a new license. If it's your first offence, you cannot apply for a new driver's license for one year. You cannot apply for a new license for two years for a second offence, and three years for three or more offences.

If you are convicted in another province, territory, or state and notice is sent to PEI, you'll lose your licence here.

Contrary to what people often say, no exceptions are made to allow you to drive at special times, or for employment purposes.

Getting your license back

You do not automatically get your driver's license back at the end of your cancellation. You must re-apply and pay a fee. You also have to meet the following requirements.

If it was a first offence, you must complete the driver's rehabilitation course, a 4-hour educational program on drinking and driving and the effects of alcohol.

For a second offence, you must have an interview with a driving improvement officer and complete a driver risk analysis. What happens next depends on your score.

To get your licence back if you have three or more convictions, you will also have an assessment by an addiction services counsellor. If the counsellor says you have a problem with alcohol, you must take a three-week program at an addiction services center, followed by a recommended "after care" program.

The Registrar of Motor Vehicles can refuse to give you back your driver's licence if he or she doesn't think your drinking and driving problem has improved or if you are deemed to be "a risk".

A drinking and driving conviction also affects your car insurance. If you have an accident while drinking, your insurance company may not pay for injuries to you or your passengers, or for damage to your vehicle. It will usually pay for injuries or property damage to others.

Whether there was an accident or not, a conviction for drinking and driving means an increase in your car insurance premiums. Or the insurance company could refuse to insure you in the future. It is against the law to drive without insurance.

The insurance consequences are the same for all drinking and driving offences. It is not true that the insurance company treats you more lightly if you are convicted for refusal.

If you are involved in drinking and driving (even indirectly), you can be sued for the damages suffered by others.

If you have an accident

You may be sued if you injure someone or cause property damage (like a wrecked car) in a car accident caused by your drinking and driving. If you're found responsible for the accident, the trial judge will order you to pay money as compensation to the injured people. If your insurance does not cover this amount, you have to pay it yourself.

For serving liquor

If you serve alcohol to underage or intoxicated people who then injure themselves, they could sue you. Also, if they drive after you serve liquor to them and have an accident, the injured people could sue you, too. This applies not only to businesses (such as bars, clubs, and resorts) but also to people serving liquor to friends in their own homes.

As you can see, drinking and driving is treated very seriously by the legal system. The consequences of a conviction can affect your entire life. We are ending this brochure with a summary of the possible results of drinking and driving.

A sentence imposed by the judge -- often jail and a fine. A criminal record. A driving ban for a certain period ordered by the judge A cancellation of your driver's license by the province If there was an accident, a refusal by your insurance company to pay for damages to you or your passengers. An increase in future car insurance premiums. A law suit by someone who has suffered injury, death, or property damage because of drinking and driving.

Revised for CLIA by Valerie Moore and Dave O'Brien Q.C. in cooperation with the Highway Safety Division of the Department of Transportation and Public Works,

Edited by The publications committee of CLIA and community volunteers

Revised July 1997

ISBN 0-921896-00-X

Charitable Registration Number: 118870757RR